CHAPTER 7
Freedom of Speech
When Seth Greenberg, coach of the California State University at Long Beach basketball team, walked into the visitors’ locker room in the Pan American Center at New Mexico State University, he was confronted by the greaseboard message, “SETH, GET READY FOR AN ASS-KICKING, YOU JEW BASTARD.” The outpouring of hate continued during the game, with some of the fans yelling obscenities and racial epithets such as “Take one of the niggers out.” After the game, the visibly upset coach Greenberg told television interviewers that the slurs were “a sad commentary on life and … a sad commentary on this university.” A few days later, New Mexico State University Vice President Michael Conroy sent a letter to the president of Long Beach State, demanding an apology from Greenberg and castigating him for impugning the reputation of the university and the state of New Mexico.
Who was in the wrong? Should Greenberg have been more tolerant of the racial slurs? Should college campuses have speech codes that restrict hate speech, or should hate speech be protected under freedom of speech?
WHAT IS “FREEDOM OF SPEECH”?
Freedom of speech is a type of liberty right. We have a right to express our opinions without interference from the government or other people. The primary value of freedom of speech is the promotion of truth and expression. John Stuart Mill, in his essay On Liberty, argues that freedom of speech is at the heart of democracy. Expression of ideas cannot be prohibited simply because people find them offensive.
Not all forms of verbal expression are considered speech. Yelling “Fire!” in a crowded theater; “fighting words” intended to inflame someone into committing violent actions; and slanderous, false rumors intended to ruin someone’s reputation are not generally protected under freedom of speech. Symbols such as swastikas, armbands, and burning crosses, on the other hand, are protected as freedom of expression if they’re used in a public place, like a rally or public schools.
There are many gray areas in the freedom-of-speech debate. Should unsolicited calls from political candidates and spam on the Internet be protected speech? What about pornography, or expressions of anti-American sentiment in times of war, flag burning, or speech that condones terrorism? The community is even more deeply divided over the moral permissibility of hate speech. Hate speech is defined as “epithets conventionally understood to be insulting references to characteristics such as race, gender, nationality, ethnicity, religion, and sexual preference.”1
Libertarians argue that, although discrimination is wrong, hate speech should be protected because we have a right to express our ideas. Stanley Fish, in his reading “There’s No Such Thing as Free Speech, and It’s a Good Thing, Too,” disagrees. He argues that speech and action cannot be separated. Charles R. Lawrence III also rejects this distinction, arguing that racist speech and discriminatory conduct are part of a totality that is incompatible with equality. (See the readings by Fish and Lawrence at the end of this chapter.)
LIMITATIONS ON FREEDOM OF SPEECH
Like most liberty rights, freedom of speech is not an absolute right but is limited by the rights of others to pursue their equal and similar interests. Every society places limits on speech in order to prevent violence and civil disorder as well as to protect its citizens against fraud, threats, and harassment. Without some rules of order, discussions would degrade into chaos and frustration. The question of how far these restrictions should extend is widely debated.
Liberals argue that the government does not have a right to protect citizens from offensive speech. Censorship—the controlling of silencing of speech—can occur without legal sanctions, as Alan Dershowitz points out in his article on political correctness on campuses. Some feminists argue that pornography should be censored because it poses a direct threat to women’s equality. The American Civil Liberties Union (ACLU) argues the opposite; it is censorship of pornography and hate speech that threatens to undermine equality.
Censorship has traditionally rested on the assumption that people in authority possess the truth and are able to make final judgments about what is right and good. People who expressed doubts about these “truths” were labeled heretics, foolish, dangerous, or insane. The oppression of great thinkers like Galileo illustrates how censorship can hold back progress.
The USA Patriot Act, passed shortly after the terrorist attacks of September 11, 2001, gives government enforcement officials increased powers to eavesdrop on international phone calls and to search people’s library and bookstore records. The USA Patriot Act was expanded in 2006 to allow the Justice Department to “detect and disrupt” the activities of suspected terrorists as well as drug dealers and other criminals.
Many people argue that the Patriot Act is a violation of Americans’ First Amendment right to freedom of speech. The Universal Declaration of Human Rights was adopted by the United Nations in 1948 following World War II as a “common standard of achievement for all peoples and all nations.” Article 19 states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” The Patriot Act expired in 2015 and was replaced with the USA Freedom Act, a modified form of the original act.
THE FIRST AMENDMENT TO THE U.S. CONSTITUTION
The patriots in the American Revolution were no more willing to recognize freedom of speech than the British were and had no qualms about repressing speech that was not favorable to their cause. Indeed, during the American Revolution many loyalists, Quakers, and other political dissenters fled to Canada in fear of their lives.
Nor is there any indication that the Bill of Rights was intended to prevent censorship and regulation of speech. The original purpose of the First Amendment was to delegate the power to restrict freedom of speech to the states; although the federal government could not restrict speech, the state and municipal governments could.
Freedom of speech was not regarded as an end in itself, but rather as a means of informing the citizenry and promoting democracy. The most valued type of speech was political speech. Alexander Hamilton, one of the defenders of free expression, wrote, “The liberty of the press consists in the right to publish, with impunity, truth, with good motives, and for justifiable ends, whether it respects government, magistracy, or individuals.” Utterances that abused this liberty (that is, were not made with concern for the truth, or with good motives) could be censored.
World War I gave rise to new concerns about speech that endangered national security. Supreme Court Justice Oliver Wendell Holmes was one of the great champions of freedom of speech in the early twentieth century. In his dissent in Abrams v. the United States (1919), Holmes defended freedom of speech on the grounds that society’s ultimate good “is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Holmes’s concept of the free marketplace of ideas, adopted from John Stuart Mill’s work, has had a major impact on the Supreme Court’s thinking about the role of freedom of speech in a democratic society. See reading from Mill’s “On Liberty” at end of chapter.
The limits of freedom of speech were also tested in the early 1940s by the refusal of some public school students to stand for and say the Pledge of Allegiance. The students were threatened with expulsion and fines. The case went to the Supreme Court which ruled in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) that the Free Speech Clause of the First Amendment protects students from being forced to salute the American flag or say the Pledge of Allegiance in public school. This ruling was not popular among many people who considered it unpatriotic not to stand and recite the pledge.
In the early 1950s Senator Joseph McCarthy of Wisconsin reported on his investigation of Communist subversion in the United States. His sensationalist report was followed by a series of public hearings in which the careers of many prominent Americans were ruined on the most flimsy, hearsay evidence. Defenders of McCarthyism argued that Communist ideas should be repressed to “protect freedom” and democratic values. According to editor and journalist William F. Buckley Jr., for a free market of ideas to thrive, people out to defraud the public with a defective product (Communism) must be exposed.2
In 1954 McCarthy was formally censured by the Senate. The demise of McCarthyism was followed by a rapid expansion of the First Amendment. Speech other than political speech—such as sexual speech and pornography, entertainment, commercial speech, nonverbal expressions such as nude dancing and flag burning, and emotional utterances—came to be included under freedom of speech.
The limits of freedom of speech have been tested in attempts to restrict protesters outside abortion clinics. In the 1997 Schenck v. Pro-Choice Network decision, the U.S. Supreme Court 273ruled that abortion protesters may be kept outside a fifteen-foot “bubble zone” protecting those entering and leaving the clinics. In 2000 the Supreme Court in Dale v. Boy Scouts of America (BSA) ruled that the BSA’s policy banning homosexuals from the Boy Scouts was protected under the First Amendment, stating that “The forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.”
One of the most contentious issues regarding First Amendment freedom of speech is religious speech in public places. In 1980 displays of the Ten Commandments were banned from public schools. And in 2000 the U.S. Supreme Court sided with those who wanted prayers removed from public schools and universities on the grounds that public prayer violated the separation of church and state. Freedom of speech became a contentious national issue again when members of the Westboro Baptist Church of Kansas staged anti-gay protests at funerals of fallen soldiers from Iraq and Afghanistan. The members of the church contended that the deaths were God’s revenge for the country’s tolerance of homosexuality. The Supreme Court in Snyder v Phelps (2011) ruled that the protesters, as offensive as their speech was to the family members of the soldiers, had a First Amendment right to picket funerals. More recently, in November 2011, dozens of Occupy Wall Street protestors at the University of California at Davis and at Seattle Community College, including an 84-year-old woman and a pregnant woman, were pepper sprayed by police after they defied police orders to disperse.
FREEDOM OF SPEECH IN CYBERSPACE
Questions regarding freedom of speech have also arisen in the context of the electronic and telemarketing media. The Telecommunications Act of 1996 amended the Communication Act of 1934. One of the purposes of the revisions of the 1934 act was to explicate and strengthen the marketplace of ideas and freedom of speech in the communications industry.
Internet use has increased dramatically since the 1990s. As of 2017, more than 4 billion people worldwide were Internet users, with the most rapid growth in Internet use occurring in Africa and the Middle East.3 Indeed, the UCLA American freshman survey has found that college freshmen were spending more time surfing the Internet and visiting online social networks than studying.4
The rapid development of the Internet over the past few decades has raised the question of whether the rules surrounding freedom of speech that apply to traditional forms of broadcast technology should apply to Internet speech. Internet technology is distinguished from traditional broadcast technology in that anyone who has access to a computer can “broadcast” information to people around the world. Because the Internet is so accessible, it has been hailed as “the great equalizer,” “the most participatory form of mass speech yet developed,” and “the best advancement in democracy since universal suffrage.”5 On the other hand, as Chinese film director Zhang Xu points out, there is also a downside to the Internet. Web broadcast TV and radio may homogenize the thinking, interests, and tastes of people around the world.6 And unlike radio and television, where the hours of broadcast can be regulated, the material on the Internet is available twenty-four hours a day. The Communications Decency Act of 1996 provides immunity to websites.
Reno v. American Civil Liberties Union (1997) was the first U.S. Supreme Court decision according First Amendment protection to the Internet. The decision rejected the government’s argument that the Internet should be treated like the broadcast industry, striking down the 274Communications Decency Act (CDA) restrictions, which required that online communication be reduced to a “safe for kids” level. It stated that in the absence of any effective method for preventing minors from accessing offensive information on the Internet, the restriction of speech on the Internet would impose an undue restriction on adults’ access to information. In 2002 the Court struck down the Child Pornography Prevention Act, which would have made it a crime to create and distribute sexually explicit images of children, whether the images are digitally altered photos of adults or computer-generated images. Television and radio networks have stricter guidelines than the Internet. As a consequence, Internet viewership of the Arab network al-Jazeera has skyrocketed in the United States. This in turn has raised concerns that it may promote support for al-Qaeda.
In 2011 Tarek Mehanna of Massachusetts was charged with using the Internet to help the al-Qaeda terrorists. Mehanna’s lawyers contend that he has a First Amendment right to promote his cause, whatever it may be, on an online blog. Because the Internet is global, solutions to problems on the Internet will require international cooperation and regulation. (See Case Study 7: Terrorism and Freedom of Speech on the Internet.)
PORNOGRAPHY
The debate over pornography in the past thirty years has moved from arguments over the morality of nonprocreative sex to arguments based on freedom of speech and concerns that pornography may contribute to gender discrimination, rape, and sexual harassment. This shift is due in part to the proliferation of pornography since the late 1970s. The use of the Internet to distribute pornography allows people to view sexual violence without having to leave the comfort of their homes.
There are more than four million pornographic websites. Pornography is a 12-billion-dollar industry; the revenue from pornography in the United States alone is almost double the combined revenues of ABC, CBS, and NBC.7 The largest consumers of Internet pornography are teenagers; 80 percent of fifteen- to seventeen-year-olds have had multiple hard-core pornography exposures. Males are much more likely than females to visit pornography sites.
Despite attempts to define pornography, establishing precise criteria has been difficult. Appeals to “offensiveness” run the risk of using subjective feelings or majority rule rather than rational criteria. In 1986 the U.S. Attorney General’s Commission on Pornography defined pornography as “the category of material featuring actual or unmistakably simulated or unmistakably threatened violence presented in sexually explicit fashion with a predominant focus on the sexually explicit violence.” Erotica, in contrast, involves a mutually pleasurable sexual expression; there is no clear conqueror or victim.8 In addition to written works, art that involves nudity, including Picasso’s abstract nudes and Michelangelo’s statue of David, has been the target of censorship from government or private action. Music, such as some rap and hip-hop, that uses obscene language deemed degrading to women has also been censored.
Canadians have been relatively consistent in their legal opposition to pornography. In 1978 the Canadian Standing Committee on Justice and Legal Affairs stated that “the clear and unquestionable danger of this type of material is that it reinforces some unhealthy tendencies in Canadian society [and] male-female stereotypes to the detriment of both sexes.”9
In the United States, there have been mixed reactions to legal restrictions on pornography. In Roth v. United States (1957), the United States Supreme Court ruled that “obscene” material 275was not constitutionally protected speech. In 1970, however, the Commission on Obscenity and Pornography concluded that pornography was not harmful and recommended that all legal prohibitions against the sale of pornography between consenting adults be removed. In 1986 former Attorney General Edwin Meese’s Commission on Pornography recommended that pornography be censored, arguing that it contributes to sexual violence and antisocial attitudes. While adult pornography remains legal as a form of protected expression, child pornography is illegal throughout the United States.
One of the arguments used by opponents of censorship is the Aristotelian view that pornography acts as a catharsis or release for harmful, pent-up sexual urges.10 There is no scientific evidence, however, that pornography has a cathartic effect. If anything, studies suggest that media violence provokes greater feelings of aggression. (See Case Study 5: The “Mean World Syndrome” and Violence in the Media.) Although the evidence is inconclusive, some studies have found viewing violent pornography to be positively correlated to acts of violence against women.11
Some radical feminists argue that pornography is immoral because it poses a substantial threat to women’s equality and, therefore, directly harms women. Radical feminism, in particular, focuses on the oppressive patriarchal hierarchy and its harms to women.12 Others question whether there is sufficient evidence to establish the claim that violent pornography presents a “clear and present danger” to women. A ban on violent pornography, they argue, would have a “chilling effect” on freedom of speech as well as undermine the struggle for human rights and equality of women and minorities. (See Case Study 1: Hustler Publisher Larry Flynt: “Free-Speech Hero”.)
HATE SPEECH AS PROTECTED SPEECH
Radio and television commentator Dr. Laura Schlessinger believes that homosexuals violate scriptural teachings and that homosexual sex is deviant behavior. Her views have incensed many people who have dubbed Dr. Schlessinger “The Queen of Hate Radio.” Rather than an adversary whose ideas are to be debated in the free marketplace of ideas, she is regarded as a hateful person who should be censored and silenced. The San Francisco Board of Supervisors has officially warned Schlessinger about “making inaccurate statements about gays and lesbians that incite violence and hate.”13 However, do her antihomosexual views amount to dangerous hate speech that should be suppressed? Where do we draw the line between hate speech and speech, though offensive and perhaps even inaccurate, that should be tolerated in the name of freedom of speech?
In the 1978 Skokie case (see box), the American Civil Liberties Union (ACLU) defended the right of neo-Nazis to march in Skokie, Illinois, a predominantly Jewish neighborhood in Chicago where a number of Holocaust survivors resided. The ACLU argued that the principle of justice required impartiality or neutrality in deciding whether a particular type of expression should be restricted. The Supreme Court agreed, ruling that a particular type of expression should not be outlawed simply because some people find the content offensive.
In 1990 Robert A. Viktora and several other white teenagers fashioned a cross out of broken chair legs. They then held a Klan-type cross burning on the lawn of a black family who had just moved into a mostly white neighborhood in St. Paul, Minnesota. Viktora was convicted under the city’s hate speech ordinance, which prohibited “fighting words”—speech or expressions that were likely to provoke “anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.”
In R.A.V. v. St. Paul (1992), the first U.S. Supreme Court ruling on hate speech, the Court agreed with Viktora that the St. Paul law violated his freedom of speech. Whereas laws restricting fighting words were constitutional, hate speech laws were not, because they exercised “content-based discrimination”; that is, they were aimed at preventing specific types of speech such as expression of racism. At the time of the R.A.V. v. St. Paul ruling, there were laws against hate speech in forty-six states. The Court has declared most of these laws unconstitutional on the grounds that the First Amendment prohibits “laws silencing speech on the basis of its content.”
Charles Lawrence argues that the social context in which hate speech takes place is morally relevant to whether it should be tolerated. Rather than defending abstract principles such as impartiality, we should be more concerned with defending the real victims.
SPEECH CODES AND FREE SPEECH ZONES ON COLLEGE CAMPUSES
Most colleges and universities in the United States have speech codes that place restrictions on some forms of speech, such as hate speech, fighting words, obscenity, or speech that violates civility codes. The University of Michigan has one of the most restrictive campus speech codes. Its policy forbids all conduct that “stigmatizes or victimizes” students on the basis of “race, ethnicity, religion, sex and sexual orientation.”14 The code was created to cut down on the increasing frequency of racist, sexist, and other forms of hate speech. Although legal scholars generally agree that these campus speech codes are unconstitutional, about one-third of colleges in the United States still have codes that restrict speech.15 Because courts have sided with students when colleges have tried to punish students for violating campus speech codes, most colleges do not punish violations, but use the codes instead to set standards for fostering an environment of civility and tolerance for diversity.
Campus speech codes evolved out of the civil rights movement of the 1960s and 1970s and in response to the escalation of racist incidents on campuses in the 1980s. Sometimes dubbed the “politically correct” movement, speech codes were intended to restrict offensive and bigoted forms of expression and encourage tolerance of diversity. (See Case Study 2: Brown Students Destroy Offending Newspapers.) The University of Wisconsin’s speech code, for example, prohibits speech intended to “create a hostile learning environment” by demeaning another person’s gender, race, sexual orientation, disability, creed, or ethnic background.
The political correctness movement was the most successful effort in American history to restrict hate speech. It was also one of the first times that students asked professors and administrators to place restrictions on offensive speech. Charles Lawrence was a leader in the movement to curb hate speech on college campuses. His legal expertise provided, in part, the sophisticated arguments needed to convince members of the college community to support speech codes.
Have campus speech codes gone too far? Stockport College in England has banned thirty offensive words and phrases, including “lady,” “history,” and “slaving over a hot stove.”16 The words “lady” and “gentleman,” so the rationale goes, have “class implications,” while the word “history” has sexist implications. “Slaving over a hot stove” is considered racist.
Like John Stuart Mill, the ACLU maintains that more speech, not less, is the best response to offensive speech. Restricting the speech of one group—whether Nazis, bigots, antiabortionists, or antiwar protesters—jeopardizes everyone because the laws can be used to silence those who wanted the laws to silence others. For example, under an anti–hate speech code at the University of Michigan, twenty black students were accused by white students of using offensive speech. The University of Michigan speech code was struck down as unconstitutional in 1987. In his reading at the end of this chapter, Stanley Fish defends campus speech codes in situations where freedom of speech threatens the academic community’s values of tolerance and freedom of expression.
Another way colleges restrict free speech is by designating “free speech zones” on campus. Greg Lukianoff of the Foundation for Individual Rights in Education (FIRE) calls free speech zones an “Orwellian exercise for turning 99 percent of a university’s campus into a censorship zone.”17 The main argument for free speech zones is that noisy protests may disturb classes that are in session. Matthew Poe, a senior at West Virginia University, was stopped by campus police for handing out flyers outside a free speech zone. “I think America is a free speech zone, and the university has no business restricting it,” said Poe in his defense. “Rather, the university has a moral responsibility to endorse it.” He maintains that free speech zones are simply a thinly veiled excuse “to stop campuses from becoming confrontational, …”18 In addition to restricting controversial speech by students, campus speech zones place even more onerous restrictions on groups from off-campus, especially those that hold controversial views. For example, Harvard University prohibited people from off-campus from participating in an Occupy Wall Street protest on campus. The battle over limiting controversial speech to “free speech zones” is gaining momentum as more complaints and First Amendment rights lawsuits are brought against college administrations. Courts have ruled in favor of the student groups in several of these cases.
Supporters of campus hate speech codes and free speech zones, such as Fish, point out that because people should be able to feel secure in their own homes, there should be greater protection against hate speech harassment on residential campuses than might be necessary in a public setting. Agreeing to attend a particular college entails agreeing to abide by a certain set of rules, such as nondrinking rules, restrictions on visiting hours, and restraints on certain forms of offensive speech. In his article toward the end of this chapter, Alan Dershowitz maintains that the political correctness movement, which spawned these speech codes, has done more harm than good. Jonathan Marks, in his reading “Embarrassing Persistence of Campus Speech Codes,” also questions why so many campuses still have speech codes.
THE PHILOSOPHERS ON FREEDOM OF SPEECH
Aristotle acknowledged the importance of liberty and freedom of speech in a democracy. He also believed that expression of violent and hateful thoughts might be cathartic and purge violent urges. Plato disagreed. In his Republic, Plato argues that literature, art, verse, and even music that is “impious” and “self-contradictory” should be censored if the republic is to be well ordered. According to Plato, though some of this might appear innocuous in small doses, “lawlessness 279easily creeps in unobserved … in the guise of a pastime, which seems so harmless.” The current debate over the morality of pornography and violence in the media depends to a large extent on whether one accepts Aristotle’s or Plato’s position on the benefits of free expression.
John Locke valued freedom of speech primarily as a political value. He writes, “He who takes away the Freedom [of speech in the legislature], … in effect takes away freedom of debate in the legislature, and puts an end to the Government.”19 Like Locke, Ayn Rand argues that the right of free speech is a fundamental right. A person, she writes, “has the right to express his ideas without danger of suppression, interference or punitive action by the government.”20 John Rawls also regards freedom of speech as “one of the basic liberties of citizens.”21
In his essay On Liberty, John Stuart Mill argues that the state does not have the right to interfere with citizens’ freedoms except where restriction is necessary to protect the person and property of others. According to him, the harm caused by censorship far outweighs any harm that might result from spreading vicious or false opinions. Truth, he notes, is often found not in the opinion of the status quo nor in the opinion of a dissenter, but in a combination of viewpoints. Therefore, freedom of speech and listening to opposing opinions, no matter how offensive they may be to some people, can allow a fuller truth to emerge.
According to the “marketplace of ideas” metaphor, ideas are like a product on the market. Just as the free market tends to deliver the best consumer goods, if everyone comes to the marketplace of ideas to express her or his opinions, the best opinions will eventually win out. This argument is used by those who support teaching intelligent design in schools. Mill was not suggesting that truth is like a product whose “goodness” is determined by how well it satisfies customer demand. When it comes to expression of ideas, Mill was well aware of the dangers of the tyranny of the majority. In a democracy “there needs to be protection also against the tyranny of the prevailing opinion and feeling, against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them.”22
Although freedom of expression is a necessary condition for human progress, it is not a sufficient condition. We cannot assume that true opinions will triumph in a free marketplace of ideas. We must actively encourage the expression of minority viewpoints because of the tendency for the majority to coerce the minority into conforming. Thus Mill placed the highest value on the speech of those who have the least power in society.23 Fish, in contrast, argues that there is no such thing as freedom of speech as an absolute value and that speech may have to be restricted to protect other values that are more important to the community.
The concept of abstract rights that exist independently of a particular context is mostly a Western innovation. Buddhist virtue ethics, in contrast, is concerned with the development of a virtuous disposition, rather than abstract rights or legal prohibitions. Speech is one of the modes in which an unvirtuous disposition can be expressed. We have a moral obligation to avoid slanderous and divisive speech and to cultivate speech that is truthful and that strengthens the bonds of friendship. Confucianism also emphasizes the virtue of sincerity in our speech and actions.
THE MORAL ISSUES
Social Order
One reason given for restrictions on the freedom of speech is to preserve public order. Members of a society must share certain core values if the society is to survive. For democracy to thrive, 280ideas that are subversive to democracy must be discouraged. Education, by its very nature, reinforces certain ideas over others. In the United States our schools routinely indoctrinate students in the virtues of democracy.
The Canadian argument for the regulation of pornography was based in part on the argument that the community has the right to enforce standards of public good. There has recently been a shift away from the standard of obscenity to include only material that may potentially lead to violence, especially against women, as illegal pornography. Most ethicists in the United States similarly believe that social good, on its own, is not a sufficient justification for outlawing certain types of speech or behavior.
Campus speech codes and free speech zones maintain social order by keeping college campuses from turning into a pandemonium where the advantage goes to those who can shout the loudest and intimidate the most through their persistent expressions of hatred. On the other hand, speech codes can also intimidate and stifle anyone who has an idea that might be offensive to others.
Restrictions on speech in the name of national social order can become overly restrictive. McCarthyism, for example, was carried out in the name of protecting freedom and democratic values against the “clear and present” danger of Communism. Some people fear that the USA Freedom Act also places unnecessary restriction on freedom of speech in the name of maintaining social order. In his reading “Embarrassing Persistence of Campus Speech Codes” at the end of this chapter, Jonathan Marks argues that campus speech codes are not only unconstitutional but also a violation of freedom of speech.
Liberty Rights, Freedom of Speech, and Autonomy
Radical feminists, such as Catharine MacKinnon, accuse libertarians of placing freedom of speech above women’s well-being. They argue that pornography restricts women’s freedom and, hence, cannot be defended on the grounds of freedom of speech. Furthermore, pornography has no value in the marketplace of ideas because it presents a distorted view of women and, hence, is based on a lie about women’s sexuality. Other feminists disagree. They fear that repression of pornography may impede women’s liberation by emphasizing women as victims.
Libertarians argue that we cannot get rid of hate speech or pornography without destroying genuine freedom of speech. Even racial slurs and hate speech provide the target with information about the views of the person making the slur. It is better to let false or harmful ideas compete in the marketplace, where they are likely to fade when exposed to the light of truth, than to let the government or others in authority determine what is true and false and what is beneficial and harmful. Restriction of speech stifles the free exchange of ideas by putting people on guard against making any jokes or statements that might be offensive to others. For example, Alan Dershowitz tapes his lectures on rape statutes, because he fears that someone in the class might interpret what he said as a form of sexual harassment.24
Lawrence counters that censoring hate speech is not an infringement on our right to free speech. Hate speech, he maintains, is not really speech or an expression of an idea but an attack. Shouting racial slurs is like a slap in the face. Most hate speech is not an invitation to engage in dialogue but an attempt to silence dialogue through intimidation. Traci Yoder, in her reading on “Free Speech on Campus” at the end of this chapter, also points out the failure of many campuses to include conservation and reactionary views alongside liberal views.
Proponents of restrictions on hate speech also point out that liberty rights exist to protect the autonomy of persons. One of the conditions of autonomy is rationality. For speech to be 281a moral right, the speaker must be coming from a position of reason and openness to judgment and rational dialogue. One of the current issues regarding autonomy and freedom of speech is whether websites have a right to sell an essay to students. (See Case Study 6: Internet Plagiarism among College Students.)
Civility and Respect for Human Dignity
According to deontologists, we have a duty to respect the dignity of other persons. Pornography violates Kant’s categorical imperative by dehumanizing women. Rather than being portrayed as autonomous moral beings, women are viewed as means-only instruments of men.
Hate speech likewise creates a hostile environment and a message of exclusion. Rather than subjecting themselves to assaults on their dignity, members of groups targeted by hate speech are likely to avoid these environments. The rash of racist incidents on campuses in the 1980s was accompanied by a decrease in the college enrollment of black men. Thus, hate speech thwarts the aims of education and diversity. Rather than contributing to open discussion of ideas, hate speech compromises the ability of those targeted by it to respond and to be equal participants in the debate.
Respect for human dignity requires that we refrain from using hate speech. On the other hand, it is not clear that this justifies legislating civility or placing restrictions on people’s speech. There are many ways of treating people as moral inferiors—through ignoring or snubbing them, by interrupting them, or by avoiding them—all acts that few think should be legally banned. Furthermore, people cannot be forced into a subordinate position through hate speech in the way they can through segregation laws or discrimination in hiring. Although hate speech puts down its target as a moral inferior, it does not effect an actual change in the target’s moral and legal status.
Harm–Nonmaleficence
Most ethicists agree that speech that directly results in physical harm should be prohibited. For example, it is illegal for a prankster to cry “Fire” in a crowded theater. Fraudulent and libelous speech is also restricted because of the harm it causes.
Does the principle of nonmaleficence also justify restrictions on hate speech and pornography? What about commercial advertising of harmful products such as tobacco and junk food? Although Mill uses the harm principle as a limit on freedom of speech, he is not clear on what constitutes harm to others. Is psychological distress sufficiently harmful to override freedom of speech? Hate speech harms people by creating unequal opportunity in educational and workplace environments, thus depriving its targets of their freedom of speech by intimidating them into silence.
Furthermore, it is not clear how pornography directly harms women. Even though it may be a “lower” pleasure, pornography is pleasurable to those who use it. In order to justify censorship it must first be shown that the benefits of outlawing pornography would outweigh the harms of suppressing freedom of speech. According to this line of reasoning, pornography directly harms women by constructing a social environment that interferes with women’s ability to participate fully and equally in social and political life.
We may agree that pornography and hate speech are wrong because of the harm they impose on their victims, yet also believe that legal restrictions are not the best way to control them. Indeed, laws prohibiting hateful and abusive speech may harm the very groups they are meant to protect. One of the first people convicted under the 1976 British Race Relations Act was a black leader, who was sentenced to twelve months’ imprisonment for verbally abusing the white community.25
The Slippery Slope
Some ethicists worry that restrictions on pornography, hate speech, political speech, and commercial speech may start us down the proverbial slippery slope toward more and more restrictions on our freedom of speech. Indeed, the ACLU argues that this is already happening to some extent with the passage of the USA Patriot Act. Because it is so difficult to decide what is and what isn’t acceptable speech, laws and speech codes prohibiting certain types of speech might be expanded to embrace speech that is offensive to the powers that be, as happened during the McCarthy period.
Pluralism and Tolerance
Pluralism and multiculturalism require tolerance of differences. Lawrence maintains that tolerance of hate speech can conflict with pluralism and the elimination of racism. As a moral ideal, pluralism ensures that the most vulnerable groups have a place in society. Much of the motivation behind the politically correct movement and campus speech codes is to ensure that people who are not from the mainstream culture will be able to express their views without fear of intimidation. Traci Yoder, in her reading at the end of this chapter, questions whether unfettered freedom of speech on campuses is the best way to ensure that all views get heard.
On the other hand, restricting the freedom of speech of groups whose ideas are at odds with our own is to lay a trap for ourselves as well. As critics point out, legislating intolerance of certain speech to promote tolerance may backfire.
Impartiality, Equal Justice, and Discrimination
Pornography has been described as a form of sex discrimination because it requires the abuse and coercion of women for its manufacture. Pornography is not like hate speech, which does not involve the compliance of its victims for its expression. Pornography does not just convey the idea that women are subordinate; it actually subordinates and silences them by putting them in a position of inferiority. Therefore, legal restrictions on pornography are essential if women are to achieve full equality.
According to Lawrence, tolerance of hate speech conflicts with the elimination of discrimination and racism. He argues that the 1954 United States Supreme Court Brown v. Board of Education decision, which outlawed school segregation, was really about freedom of speech. Segregated schools are wrong because they communicate a message of unworthiness to black children. Similarly, prohibiting hate speech is necessary in order to ensure equal protection. Laws against racist speech would reaffirm the conviction that all people are equal. Some feminists also make the same argument: Permitting sexist speech is at odds with the more important goal of egalitarianism.
Those who feel that restrictions on freedom of speech should be content-neutral base their argument on the principle of impartiality. Whereas the principle of impartiality in justice may be appropriate in an egalitarian society, in a society where racism and sexism are embedded in the very structure, it only serves to perpetuate inequalities.
CONCLUSION
Does society have a moral obligation to protect people from verbal and written assaults on their dignity? Or should we accept the libertarian position that pornography and hate speech should not be legally restricted? Even if we do, this does not entail the claim that pornography and hate speech are morally acceptable. Some hate speech and pornography are clearly inconsistent with respect for persons. We ought not to engage in them. As moral agents we also have a moral obligation to respond to hate speech. Alexander Hamilton once said that the greatest danger to freedom was not restrictions on freedom of expression but an apathetic citizenry. Part of freedom of speech is a duty to speak out against hatred, sexism, and bigotry.
JOHN STUART MILL
On Liberty
John Stuart Mill, prominent English utilitarian and defender of liberty rights, wrote On Liberty in 1859. In it he argues that utility must be grounded in the freedom of people to pursue their own good, as long as they are not attempting to deprive others of their liberty rights. In particular, freedom of speech is essential in a democracy if we want to avoid the “tyranny of the majority” and intellectual stagnation.
From On Liberty (London: Longman, Roberts & Green, 1869).
INTRODUCTORY
… The struggle between Liberty and Authority is the most conspicuous feature in the portions of history with which we are earliest familiar, particularly in that of Greece, Rome, and England. But in old times this contest was between subjects, or some classes of subjects, and the Government. By liberty, was meant protection against the tyranny of the political rulers…. In time, however, a democratic republic came to occupy a large portion of the earth’s surface, and made itself felt as one of the most powerful members of the community of nations; and elective and responsible government became subject to the observations and criticism which wait upon a great existing fact. It was now perceived that such phrases as “self-government,” and “the power of the people over themselves,” do not express the true state of the case. The “people” who exercise the power are not always the same people with those over whom it is exercised; and the “self-government” spoken of is not the government of each by himself, but of each by all the rest. The will of the people, moreover, practically means the will of the most numerous or the most active part of the people; the majority, or those who succeed in making themselves accepted as the majority; the people, consequently may desire to oppress a part of their number; and precautions are as much needed against this as against any other abuse of power…. [I]n political speculations “the tyranny of the majority” is now generally included among the evils against which society requires to be on its guard….
Protection, therefore, against the tyranny of the magistrate is not enough: there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them….
There is a sphere of action in which society, as distinguished from the individual, has, if any, only an indirect interest; comprehending all that portion of a person’s life and conduct which affects only himself, or if it also affects others, only with their free, voluntary, and undeceived consent and participation…. This, is the appropriate region of human liberty. It compromises, first, the inward domain of consciousness; demanding liberty of conscience in the most comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological. The liberty of expressing and publishing opinions may seem to fall under a different principle, since it belongs to that part of the conduct of an individual which concerns other people; but, being almost of as much importance as the liberty of thought itself, and resting in great part on the same reasons, is practically inseparable from it. Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow: 285without impediment from our fellow-creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong. Thirdly, from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived.
No society in which these liberties are not, on the whole, respected, is free, whatever may be its form of government; and none is completely free in which they do not exist absolute and unqualified. The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it….
OF THE LIBERTY OF THOUGHT AND DISCUSSION
… If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind. Were an opinion a personal possession of no value except to the owner; if to be obstructed in the enjoyment of it were simply a private injury, it would make some difference whether the injury was inflicted only on a few persons or on many. But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.
It is necessary to consider separately these two hypotheses, each of which has a distinct branch of the argument corresponding to it. We can never be sure that the opinion we are endeavouring to stifle is a false opinion; and if we were sure, stifling it would be an evil still.
First: the opinion which it is attempted to suppress by authority may possibly be true. Those who desire to suppress it, of course deny its truth; but they are not infallible. They have no authority to decide the question for all mankind, and exclude every other person from the means of judging. To refuse a hearing to an opinion, because they are sure that it is false, is to assume that their certainty is the same thing as absolute certainty. All silencing of discussion is an assumption of infallibility. Its condemnation may be allowed to rest on this common argument, not the worse for being common…. There is no such thing as absolute certainty, but there is assurance sufficient for the purposes of human life. We may, and must, assume our opinion to be true for the guidance of our own conduct: and it is assuming no more when we forbid bad men to pervert society by the propagation of opinions which we regard as false and pernicious…. There is the greatest difference between presuming an opinion to be true, because, with every opportunity for contesting it, it has not been refuted, and assuming its truth for the purpose of not permitting its refutation. Complete liberty of contradicting and disproving our opinion is the very condition which justifies us in assuming its truth for purposes of action; and on no other terms can a being with human faculties have any rational assurance of being right…. Wrong opinions and practices gradually yield to fact and argument; but facts and arguments, to produce any effect on the mind, must be brought before it. Very few facts are able to tell their own story, without comments to bring out their meaning. The whole strength and value, then, of human judgment, depending on the one property, that it can be set right when it is wrong, reliance can be placed on it only when the means of setting it right are kept constantly at hand. In the case of any person whose judgment is really deserving of confidence, how has it become so? Because he has kept his mind open to criticism of his opinions and conduct. Because it has been his practice to listen to all that could be said against him…. No wise man ever acquired his wisdom in any mode but this; nor is it in the nature of human intellect to become wise in any other manner. The steady habit of correcting and completing his own opinion by collating it with those of others, so far from causing doubt and hesitation in carrying it into practice, is the only stable foundation for a just reliance on it….
In the present age—which has been described as “destitute of faith, but terrified at scepticism”—in which 286people feel sure, not so much that their opinions are true, as that they should not know what to do without them—the claims of an opinion to be protected from public attack are rested not so much on its truth, as on its importance to society. There are, it is alleged, certain beliefs so useful, not to say indispensable, to well-being that it is as much the duty of governments to uphold those beliefs, as to protect any other of the interests of society. In a case of such necessity, and so directly in the line of their duty, something less than infallibility may, it is maintained, warrant, and even bind, governments to act on their own opinion, confirmed by the general opinion of mankind. It is also often argued, and still oftener thought, that none but bad men would desire to weaken these salutary beliefs; and there can be nothing wrong, it is thought, in restraining bad men, and prohibiting what only such men would wish to practise….
Mankind can hardly be too often reminded, that there was once a man named Socrates, between whom and the legal authorities and public opinion of his time there took place a memorable collision…. This acknowledged master of all the eminent thinkers who have since lived—whose fame, still growing after more than two thousand years, all but outweighs the whole remainder of the names which make his native city illustrious—was put to death by his countrymen, after a judicial conviction, for impiety and immorality. Impiety, in denying the gods recognised by the State; indeed his accuser asserted (see the “Apologia”) that he believed in no gods at all. Immorality, in being, by his doctrines and instructions, a “corruptor of youth.” Of these charges the tribunal, there is every ground for believing, honestly found him guilty, and condemned the man who probably of all then born had deserved best of mankind to be put to death as a criminal…. Men did not merely mistake their benefactor; they mistook him for the exact contrary of what he was, and treated him as that prodigy of impiety which they themselves are now held to be for their treatment of him…. These were, to all appearance, not bad men—not worse than men commonly are, but rather the contrary; men who possessed in a full, or somewhat more than a full measure, the religious, moral, and patriotic feelings of their time and people: the very kind of men who, in all times, our own included, have every chance of passing through life blameless and respected….
It will be said, that we do not now put to death the introducers of new opinions: we are not like our fathers who slew the prophets, we even build sepulchres to them. It is true we no longer put heretics to death; and the amount of penal infliction which modern feeling would probably tolerate, even against the most obnoxious opinions, is not sufficient to extirpate them. But let us not flatter ourselves that we are yet free from the stain even of legal persecution. Penalties for opinion, or at least for its expression, still exist by law….
But though we do not now inflict so much evil on those who think differently from us as it was formerly our custom to do, it may be that we do ourselves as much evil as ever by our treatment of them. Socrates was put to death, but Socratic philosophy rose like the sun in heaven, and spread its illumination over the whole intellectual firmament. Christians were … cast to the lions, but the Christian church grew up a stately and spreading tree, overtopping the older and less vigorous growths, and stifling them by its shade. Our merely social intolerance kills no one, roots out no opinions, but induces men to disguise them, or to abstain from any active effort for their diffusion. With us, heretical opinions do not perceptibly gain, or even lose, ground in each decade or generation; they never blaze out far and wide, but continue to smoulder in the narrow circles of thinking and studious persons among whom they originate, without ever lighting up the general affairs of mankind with either a true or a deceptive light. And thus is kept up a state of things very satisfactory to some minds, because, without the unpleasant process of fining or imprisoning anybody, it maintains all prevailing opinions outwardly undisturbed…. But the price paid for this sort of intellectual pacification is the sacrifice of the entire moral courage of the human mind. A state of things in which a large portion of the most active and inquiring intellects find it advisable to keep the general principles and grounds of their convictions within their own breasts, and attempt, in what they address to the public, to fit as much as they can of their own conclusions to premises which they have internally renounced, cannot send forth the open, fearless characters, and logical, consistent intellects who once adorned the thinking world…. Those who avoid this alternative, do so by narrowing their thoughts and interest to things which can be spoken of without venturing within the region of principles, that is, to small 287practical matters, which would come right of themselves, if but the minds of mankind were strengthened and enlarged, and which will never be made effectually right until then: while that which would strengthen and enlarge men’s minds, free and daring speculation on the highest subjects, is abandoned….
Let us now pass to the second division of the argument, and dismissing the supposition that any of the received opinions may be false, let us assume them to be true, and examine into the worth of the manner in which they are likely to be held, when their truth is not freely and openly canvassed. However unwillingly a person who has a strong opinion may admit the possibility that his opinion may be false, he ought to be moved by the consideration that, however true it may be, if it is not fully, frequently, and fearlessly discussed, it will be held as a dead dogma, not a living truth.
There is a class of persons (happily not quite so numerous as formerly) who think it enough if a person assents undoubtingly to what they think true, though he has no knowledge whatever of the grounds of the opinion, and could not make a tenable defence of it against the most superficial objections. Such persons, if they can once get their creed taught from authority, naturally think that no good, and some harm, comes of its being allowed to be questioned. Where their influence prevails, they make it nearly impossible for the received opinion to be rejected wisely and considerately, though it may still be rejected rashly and ignorantly; for to shut out discussion entirely is seldom possible, and when it once gets in, beliefs not grounded on conviction are apt to give way before the slightest semblance of an argument. Waiving, however, this possibility—assuming that the true opinion abides in the mind, but abides as a prejudice, a belief independent of, and proof against, argument—this is not the way in which truth ought to be held by a rational being. This is not knowing the truth. Truth, thus held, is but one superstition the more, accidentally clinging to the words which enunciate a truth….
To abate the force of these considerations, an enemy of free discussion may be supposed to say, that there is no necessity for mankind in general to know and understand all that can be said against or for their opinions by philosophers and theologians. That it is not needful for common men to be able to expose all the misstatements or fallacies of an ingenious opponent. That it is enough if there is always somebody capable of answering them, so that nothing likely to mislead uninstructed persons remains unrefuted. That simple minds, having been taught the obvious grounds of the truths inculcated on them, may trust to authority for the rest, and being aware that they have neither knowledge nor talent to resolve every difficulty which can be raised, may repose in the assurance that all those which have been raised have been or can be answered, by those who are specially trained to the task.
Conceding to this view of the subject the utmost that can be claimed for it by those most easily satisfied with the amount of understanding of truth which ought to accompany the belief of it; even so, the argument for free discussion is no way weakened. For even this doctrine acknowledges that mankind ought to have a rational assurance that all objections have been satisfactorily answered; and how are they to be answered if that which requires to be answered is not spoken? or how can the answer be known to be satisfactory, if the objectors have no opportunity of showing that it is unsatisfactory?…
If, however, the mischievous operation of the absence of free discussion, when the received opinions are true, were confined to leaving men ignorant of the grounds of those opinions, it might be thought that this, if an intellectual, is no moral evil, and does not affect the worth of the opinions, regarded in their influence on the character. The fact, however, is, that not only the grounds of the opinion are forgotten in the absence of discussion, but too often the meaning of the opinion itself. The words which convey it cease to suggest ideas, or suggest only a small portion of those they were originally employed to communicate. Instead of a vivid conception and a living belief, there remain only a few phrases retained by rote; or, if any part, the shell and husk only of the meaning is retained, the finer essence being lost. The great chapter in human history which this fact occupies and fills, cannot be too earnestly studied and meditated on.
It is illustrated in the experience of almost all ethical doctrines and religious creeds. They are all full of meaning and vitality to those who originate them, and to the direct disciples of the originators. Their meaning continues to be felt in undiminished strength, and is perhaps brought out into even fuller consciousness, so long as 288the struggle lasts to give the doctrine or creed an ascendancy over other creeds. At last it either prevails, and becomes the general opinion, or its progress stops; it keeps possession of the ground it has gained, but ceases to spread further. When either of these results has become apparent, controversy on the subject flags, and gradually dies away. The doctrine has taken its place, if not as a received opinion, as one of the admitted sects or divisions of opinion: those who hold it have generally inherited, not adopted it; and conversion from one of these doctrines to another, being now an exceptional fact, occupies little place in the thoughts of their professors. Instead of being, as at first, constantly on the alert either to defend themselves against the world, or to bring the world over to them, they have subsided into acquiescence, and neither listen, when they can help it, to arguments against their creed, nor trouble dissentients (if there be such) with arguments in its favour. From this time may usually be dated the decline in the living power of the doctrine…. Then are seen the cases, so frequent in this age of the world as almost to form the majority, in which the creed remains as it were outside the mind, incrusting and petrifying it against all other influences addressed to the higher parts of our nature; manifesting its power by not suffering any fresh and living conviction to get in, but itself doing nothing for the mind or heart, except standing sentinel over them to keep them vacant….
The fatal tendency of mankind to leave off thinking about a thing when it is no longer doubtful, is the cause of half their errors. A contemporary author has well spoken of “the deep slumber of a decided opinion.” …
It still remains to speak of one of the principal causes which make diversity of opinion advantageous, and will continue to do so until mankind shall have entered a stage of intellectual advancement which at present seems at an incalculable distance. We have hitherto considered only two possibilities: that the received opinion may be false, and some other opinion, consequently, true; or that, the received opinion being true, a conflict with the opposite error is essential to a clear apprehension and deep feeling of its truth. But there is a commoner case than either of these; when the conflicting doctrines, instead of being one true and the other false, share the truth between them; and the nonconforming opinion is needed to supply the remainder of the truth, of which the received doctrine embodies only a part. Popular opinions, on subjects not palpable to sense, are often true, but seldom or never the whole truth. They are a part of the truth; sometimes a greater, sometimes a smaller part, but exaggerated, distorted, and disjointed from the truths by which they ought to be accompanied and limited. Heretical opinions, on the other hand, are generally some of these suppressed and neglected truths, bursting the bonds which kept them down, and either seeking reconciliation with the truth contained in the common opinion, or fronting it as enemies, and setting themselves up, with similar exclusiveness, as the whole truth. The latter case is hitherto the most frequent, as, in the human mind, one-sidedness has always been the rule, and many-sidedness the exception. Hence, even in revolutions of opinion, one part of the truth usually sets while another rises. Even progress, which ought to superadd, for the most part only substitutes, one partial and incomplete truth for another; …
In politics, again, it is almost a commonplace, that a party of order or stability, and a party of progress or reform, are both necessary elements of a healthy state of political life; until the one or the other shall have so enlarged its mental grasp as to be a party equally of order and of progress, knowing and distinguishing what is fit to be preserved from what ought to be swept away. Each of these modes of thinking derives its utility from the deficiencies of the other; but it is in a great measure the opposition of the other that keeps each within the limits of reason and sanity. Unless opinions favourable to democracy and to aristocracy, to property and to equality, to co-operation and to competition, to luxury and to abstinence, to sociality and individuality, to liberty and discipline, and all the other standing antagonisms of practical life, are expressed with equal freedom, and enforced and defended with equal talent and energy, there is no chance of both elements obtaining their due….
We have now recognised the necessity to the mental well-being of mankind (on which all their other well-being depends) of freedom of opinion, and freedom of the expression of opinion, on four distinct grounds; which we will now briefly recapitulate.
First, if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume our own infallibility.
Secondly, though the silenced opinion be an error, it may, and very commonly does, contain a portion of truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied.
Thirdly, even if the received opinion be not only true, but the whole truth, unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds. And not only this, but, fourthly, the meaning of the doctrine itself will be in danger of being lost, or enfeebled, and deprived of its vital effect on the character and conduct: the dogma becoming a mere formal profession, inefficacious for good, but cumbering the ground, and preventing the growth of any real and heartfelt conviction, from reason or personal experience.
Before quitting the subject of freedom of opinion, it is fit to take some notice of those who say that the free expression of all opinions should be permitted, on condition that the manner be temperate, and do not pass the bounds of fair discussion. Much might be said on the impossibility of fixing where these supposed bounds are to be placed; for if the test be offence to those whose opinions are attacked, I think experience testifies that this offence is given whenever the attack is telling and powerful, and that every opponent who pushes them hard, and whom they find it difficult to answer, appears to them, if he shows any strong feeling on the subject, an intemperate opponent. But this, though an important consideration in a practical point of view, merges in a more fundamental objection. Undoubtedly the manner of asserting an opinion, even though it be a true one, may be very objectionable, and may justly incur severe censure. But the principal offences of the kind are such as it is mostly impossible, unless by accidental self-betrayal, to bring home to conviction. The gravest of them is, to argue sophistically, to suppress facts or arguments, to misstate the elements of the case, or misrepresent the opposite opinion. But all this even to the most aggravated degree, is so continually done in perfect good faith, by persons who are not considered, and in many other respects may not deserve to be considered, ignorant or incompetent, that it is rarely possible, on adequate grounds, conscientiously to stamp the misrepresentation as morally culpable; and still less could law presume to interfere with this kind of controversial misconduct. With regard to what is commonly meant by intemperate discussion, namely invective, sarcasm, personality, and the like, the denunciation of these weapons would deserve more sympathy if it were ever proposed to interdict them equally to both sides; but it is only desired to restrain the employment of them against the prevailing opinion: against the unprevailing they may not only be used without general disapproval, but will be likely to obtain for him who uses them the praise of honest zeal and righteous indignation. Yet whatever mischief arises from their use is greatest when they are employed against the comparatively defenceless; and whatever unfair advantage can be derived by any opinion from this mode of asserting it, accrues almost exclusively to received opinions. The worst offence of this kind which can be committed by a polemic is to stigmatise those who hold the contrary opinion as bad and immoral men. To calumny of this sort, those who hold any unpopular opinion are peculiarly exposed, because they are in general few and uninfluential, and nobody but themselves feels much interested in seeing justice done them; but this weapon is, from the nature of the case, denied to those who attack a prevailing opinion: they can neither use it with safety to themselves, nor, if they could, would it do anything but recoil on their own cause. In general, opinions contrary to those commonly received can only obtain a hearing by studied moderation of language, and the most cautious avoidance of unnecessary offence, from which they hardly ever deviate even in a slight degree without losing ground: while unmeasured vituperation employed on the side of the prevailing opinion really does deter people from professing contrary opinions, and from listening to those who profess them. For the interest, therefore, of truth and justice, it is far more important to restrain this employment of vituperative language than the other; and, for example, if it were necessary to choose, there would be much more need to discourage offensive attacks on infidelity than on religion. It is, however, obvious that law and authority have no business with restraining either, while opinion ought, in every instance, to determine its verdict by the circumstances of the individual case; condemning every one, on whichever side of the argument he places himself, 290in whose mode of advocacy either want of candour, or malignity, bigotry, or intolerance of feeling manifest themselves; but not inferring these vices from the side which a person takes, though it be the contrary side of the question to our own; and giving merited honour to every one, whatever opinion he may hold, who has calmness to see and honesty to state what his opponents and their opinions really are, exaggerating nothing to their discredit, keeping nothing back which tells, or can be supposed to tell, in their favour. This is the real morality of public discussion: and if often violated, I am happy to think that there are many controversialists who to a great extent observe it, and a still greater number who conscientiously strive towards it.
CHARLES R. LAWRENCE III
If He Hollers Let Him Go: Regulating Racist Speech on Campus
Charles Lawrence III is a professor of law at the Georgetown University School of Law. In the following article, Lawrence examines the morality of regulating racist hate speech on college campuses. He concludes that the protection of racist speech is incompatible with the elimination of racism. Rather than encouraging the free exchange of ideas, the tolerance of hate speech silences and devalues the ideas of minorities.
“If He Hollers Let Him Go: Regulating Racist Speech on Campus,” Duke Law Journal 431 (1990): 431–480. Used with permission of the author. Notes have been omitted.
NEWSREEL*
Racist incidents at the University of Michigan, University of Massachusetts–Amherst, University of Wisconsin, University of New Mexico, Columbia University, Wellesley College, Duke University, and University of California–Los Angeles.
The campus ought to be the last place to legislate tampering with the edges of First Amendment protections.
University of Michigan:
“Greek Rites of Exclusion”: Racist leaflets in dorms, white students paint themselves black and place rings in their noses at “jungle parties.”
*The events that appear in this newsreel are gathered from newspaper and magazine reports of racist incidents on campuses. Each of them is followed by a statement, appearing in italics, criticizing proposals to regulate racism on campus. The latter have been garnered from conversations, debates, and panel discussions at which I have been present. Some I managed to record verbatim and are exact quotes; others paraphrase the sentiment expressed. I have heard some version of each of these arguments many times over.
Silencing a few creeps is no victory if the price is an abrogation of free speech. Remember censorship is an ugly word too.
Northwest Missouri State University:
White Supremacists distribute flyers stating, “The Knights of the Ku Klux Klan are Watching You.”
Temple University:
White Student Union formed.
Memphis State University:
Bomb Threats at Jewish Student Union.
The harm that censors allege will result unless speech is forbidden rarely occurs.
Dartmouth College:
Black professor called “a cross between a welfare queen and a bathroom attendant” and the Dartmouth Review purported to quote a black student, “Dese boys be sayin’ that we be comin’ here to Dartmut an’ not takin’ the classics….”
Yes, speech is sometimes painful. Sometimes it is abusive. That is one of the prices of a free society.
Purdue University:
Counselor finds “Death Nigger” scratched on her door.
More speech, not less, is the proper cure for offensive speech.
Smith College:
African student finds message slipped under her door that reads, “African Nigger do you want some bananas? Go back to the Jungle.”
Speech cannot be banned simply because it is offensive.
University of Michigan:
Campus radio station broadcasts a call from a student who “joked”: “Who are the most famous black women in history? Aunt Jemima and Mother Fucker.”
Those who don’t like what they are hearing or seeing should try to change the atmosphere through education. That is what they will have to do in the real world after they graduate.
University of Michigan:
A student walks into class and sees this written on the blackboard: “A mind is a terrible thing to waste—especially on a nigger.” …
INTRODUCTION
In recent years, American campuses have seen a resurgence of racial violence and a corresponding rise in the incidence of verbal and symbolic assault and harassment to which blacks and other traditionally subjugated groups are subjected. There is a heated debate in the civil liberties community concerning the proper response to incidents of racist speech on campus. Strong disagreements have arisen between those individuals who believe that racist speech, such as that contained in the Newsreel that opens this Article, should be regulated by the university or some public body and those individuals who believe that racist expression should be protected from all public regulation. At the center of the controversy is a tension between the constitutional values of free speech and equality….
The “double consciousness” of groups outside the ethnic mainstream is particularly apparent in the context of this controversy. Blacks know and value the protection the First Amendment affords those of us who must rely on our voices to petition both government and our neighbors for redress of grievances. Our political tradition has looked to “the word,” to the moral power of ideas, to change a system when neither the power of the vote nor that of the gun are available. This part of us has known the experience of belonging and recognizes our common and inseparable interest in preserving the right of free speech for all. But we also know the experience of the outsider. The Framers excluded us from the protection of the First Amendment. The same Constitution that established rights for others endorsed a story that proclaimed our inferiority. It is a story that remains deeply ingrained in the American psyche.
We see a different world than that which is seen by Americans who do not share this historical experience. We often hear racist speech when our white neighbors are not aware of its presence.
It is not my purpose to belittle or trivialize the importance of defending unpopular speech against the tyranny of the majority. There are very strong reasons for protecting even racist speech. Perhaps the most important reasons are that it reinforces our society’s commitment to the value of tolerance, and that, by shielding racist speech from government regulation, we will be forced to combat it as a community. These reasons for protecting racist speech should not be set aside hastily, and I will not argue that we should be less vigilant in protecting the speech and associational rights of speakers with whom most of us would disagree.
But I am deeply concerned about the role that many civil libertarians have played, or the roles we have failed to play, in the continuing, real-life struggle through which we define the community in which we live. I fear that by framing the debate as we have—as one in which the liberty of free speech is in conflict with the elimination of racism—we have advanced the cause of racial oppression and have placed the bigot on the moral high ground, fanning the rising flames of racism. Above all, I am troubled that we have not listened to the real victims, that we have shown so little empathy or understanding for their injury, and that we have abandoned those individuals whose race, gender, or sexual orientation provokes others to regard them as second class citizens. These individuals’ civil liberties are most directly at stake in the debate….
BROWN V. BOARD OF EDUCATION: A CASE ABOUT REGULATING RACIST SPEECH
The landmark case of Brown v. Board of Education is not a case we normally think of as a case about speech. As read most narrowly, the case is about the rights of black children to equal educational opportunity. But Brown can also be read more broadly to articulate a principle central to any substantive understanding of the equal protection clause, the foundation on which all anti-discrimination law rests. This is the principle of equal citizenship….
The key to this understanding of Brown is that the practice of segregation, the practice the Court held inherently unconstitutional, was speech. Brown held that segregation is unconstitutional not simply because the physical separation of black and white children is bad or because resources were distributed unequally among black and white schools. Brown held that segregated schools were unconstitutional primarily because of the message segregation conveys—the message that black children are an untouchable caste, unfit to be educated with white children. Segregation serves its purpose by conveying an idea. It stamps a badge of inferiority upon blacks, and this badge communicates a message to others in the community, as well as to blacks wearing the badge, that is injurious to blacks. Therefore, Brown may be read as regulating the content of racist speech. As a regulation of racist speech, the decision is an exception to the usual rule that regulation of speech content is presumed unconstitutional.
The Conduct/Speech Distinction
Some civil libertarians argue that my analysis of Brown conflates speech and conduct. They maintain that the segregation outlawed in Brown was discriminatory conduct, not speech, and the defamatory message conveyed by segregation simply was an incidental by-product of that conduct…. This objection to my reading of Brown misperceives the central point of the argument….
Racism is both 100% speech and 100% conduct. Discriminatory conduct is not racist unless it also conveys the message of white supremacy—unless it is interpreted within the culture to advance the structure and ideology of white supremacy. Likewise, all racist speech constructs the social reality that constrains the liberty of non-whites because of their race. By limiting the life opportunities of others, this act of constructing meaning also makes racist speech conduct….
RACIST SPEECH AS THE FUNCTIONAL EQUIVALENT OF FIGHTING WORDS
Much recent debate of the efficacy of regulating racist speech has focused on the efforts by colleges and universities to respond to the burgeoning incidents of racial harassment on their campuses. At Stanford, where I teach, there has been considerable controversy over the questions of whether racist and other discriminatory verbal harassment should be regulated and what form that regulation should take. Proponents of regulation have been sensitive to the danger of inhibiting expression, and the current regulation … manifests that sensitivity. It is drafted somewhat more narrowly than I would have preferred, leaving unregulated hate speech that occurs in settings where there is a captive audience, speech that I would regulate. But I largely agree with this regulation’s substance and approach. I include it here as one example of a regulation of racist speech that I would argue violates neither First Amendment precedent nor principle. The regulation reads as follows:
Fundamental Standard Interpretation: Free Expression and Discriminatory Harassment
1. Stanford is committed to the principles of free inquiry and free expression. Students have the right to hold and vigorously defend and promote their opinions, thus entering them into the life of the University, there to flourish or wither according to their merits. Respect for this right requires that students tolerate even expression of opinions which they find abhorrent. Intimidation of students by other students in their exercise of this right, by violence or threat of violence, is therefore considered to be a violation of the Fundamental Standard.
2. Stanford is also committed to principles of equal opportunity and non-discrimination. Each student has the right to equal access to a Stanford education, without discrimination on the basis of sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin. Harassment of students on the basis of any of these characteristics contributes to a hostile environment that makes access to education for those 294subjected to it less than equal. Such discriminatory harassment is therefore considered to be a violation of the Fundamental Standard.
3. This interpretation of the Fundamental Standard is intended to clarify the point at which protected free expression ends and prohibited discriminatory harassment begins. Prohibited harassment includes discriminatory intimidation by threats of violence, and also includes personal vilification of students on the basis of their sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin.
4. Speech or other expression constitutes harassment by personal vilification if it:
a) is intended to insult or stigmatize an individual or a small number of individuals on the basis of their sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin; and
b) is addressed directly to the individual or individuals whom it insults or stigmatizes; and
c) makes use of insulting or “fighting” words or non-verbal symbols.
In the context of discriminatory harassment by personal vilification, insulting or “fighting” words or non-verbal symbols are those “which by their very utterance inflict injury or tend to incite to an immediate breach of the peace,” and which are commonly understood to convey direct and visceral hatred or contempt for human beings on the basis of their sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin.
This regulation and others like it have been characterized in the press as the work of “thought police,” but it does nothing more than prohibit intentional face-to-face insults, a form of speech that is unprotected by the First Amendment. When racist speech takes the form of face-to-face insults, catcalls, or other assaultive speech aimed at an individual or small group of persons, then it falls within the “fighting words” exception to First Amendment protection. The Supreme Court has held that words that “by their very utterance inflict injury or tend to incite to an immediate breach of the peace” are not constitutionally protected.
Face-to-face racial insults, like fighting words, are undeserving of First Amendment protection for two reasons. The first reason is the immediacy of the injurious impact of racial insults. The experience of being called “nigger,” “spic,” “Jap,” or “kike” is like receiving a slap in the face. The injury is instantaneous. There is neither an opportunity for intermediary reflection on the idea conveyed nor an opportunity for responsive speech. The harm to be avoided is both clear and present. The second reason that racial insults should not fall under protected speech relates to the purpose underlying the First Amendment. If the purpose of the First Amendment is to foster the greatest amount of speech, then racial insults disserve that purpose. Assaultive racist speech functions as a preemptive strike. The racial invective is experienced as a blow, not a proffered idea, and once the blow is struck, it is unlikely that dialogue will follow. Racial insults are undeserving of First Amendment protection because the perpetrator’s intention is not to discover truth or initiate dialogue but to injure the victim.
The fighting words doctrine anticipates that the verbal “slap in the face” of insulting words will provoke a violent response with a resulting breach of the peace. When racial insults are hurled at minorities, the response may be silence or flight rather than fight, but the preemptive effect on further speech is just as complete as with fighting words. Women and minorities often report that they find themselves speechless in the face of discriminatory verbal attacks. This inability to respond is not the result of oversensitivity among these groups, as some individuals who oppose protective regulation have argued. Rather, it is the product of several factors, all of which reveal the non-speech character of the initial preemptive verbal assault. The first factor is that the visceral emotional response to personal attack precludes speech. Attack produces an instinctive, defensive psychological reaction. Fear, rage, shock, and flight all interfere with any reasoned response. Words like “nigger,” “kike,” and “faggot” produce physical symptoms that temporarily disable the victim, and the perpetrators often use these words with the intention of producing this effect. Many victims do not find words of response until well after the assault when the cowardly assaulter has departed.
A second factor that distinguishes racial insults from protected speech is the preemptive nature of such insults—the words by which to respond to such verbal attacks may never be forthcoming because speech is usually an inadequate response….
The subordinated victim of fighting words also is silenced by her relatively powerless position in society. Because of the significance of power and position, the categorization of racial epithets as “fighting words” provides an inadequate paradigm; instead one must speak of their “functional equivalent.” The fighting words doctrine presupposes an encounter between two persons of relatively equal power who have been acculturated to respond to face-to-face insults with violence. The fighting words doctrine is a paradigm based on a white male point of view. In most situations, minorities correctly perceive that a violent response to fighting words will result in a risk to their own life and limb. Since minorities are likely to lose the fight, they are forced to remain silent and submissive. This response is most obvious when women submit to sexually assaultive speech or when the racist name-caller is in a more powerful position—the boss on the job or the mob….
The proposed Stanford regulation, and indeed regulations with considerably broader reach, can be justified as necessary to protect a captive audience from offensive or injurious speech. Courts have held that offensive speech may not be regulated in public forums such as streets and parks where a listener may avoid the speech by moving on or averting his eyes, but the regulation of otherwise protected speech has been permitted when the speech invades the privacy of the unwilling listener’s home or when the unwilling listener cannot avoid the speech. Racist posters, flyers, and graffiti in dorms, classrooms, bathrooms, and other common living spaces would fall within the reasoning of these cases. Minority students should not be required to remain in their rooms to avoid racial assault. Minimally, they should find a safe haven in their dorms and other common rooms that are a part of their daily routine. I would argue that the university’s responsibility for ensuring these students received an equal educational opportunity provides a compelling justification for regulations that ensure them safe passage in all common areas….
Understanding the Injury Inflicted by Racist Speech
There can be no meaningful discussion about how to reconcile our commitment to equality and our commitment to free speech until we acknowledge that racist speech inflicts real harm and that this harm is far from trivial. I should state that more strongly: To engage in a debate about the First Amendment and racist speech without a full understanding of the nature and extent of the harm of racist speech risks making the First Amendment an instrument of domination rather than a vehicle of liberation. Not everyone has known the experience of being victimized by racist, misogynist, and homophobic speech, and we do not share equally the burden of the societal harm it inflicts. Often we are too quick to say we have heard the victims’ cries when we have not; we are too eager to assure ourselves we have experienced the same injury, and therefore we can make the constitutional balance without danger of mismeasurement. For many of us who have fought for the rights of oppressed minorities, it is difficult to accept that—by underestimating the injury from racist speech—we too might be implicated in the vicious words we would never utter. Until we have eradicated racism and sexism and no longer share in the fruits of those forms of domination, we cannot justly strike the balance over the protest of those who are dominated. My plea is simply that we listen to the victims….
Again, Brown v. Board of Education is a useful case for our analysis. Brown is helpful because it articulates the nature of the injury inflicted by the racist message of segregation. When one considers the injuries identified in the Brown decision, it is clear that racist speech causes tangible injury, and it is the kind of injury for which the law commonly provides, and even requires, redress.
Psychic injury is no less an injury than being struck in the face, and is often far more severe. Brown speaks directly to the psychic injury inflicted by racist speech in noting that the symbolic message of segregation affected “the hearts and minds” of Negro children “in a way unlikely ever to be undone.” Racial epithets and harassment often cause deep emotional scarring, and feelings of anxiety and fear that pervade every aspect of a victim’s life. Many victims of hate propaganda have experienced physiological and emotional symptoms ranging from rapid pulse rate and difficulty in breathing, to nightmares, post-traumatic stress disorder, psychosis and suicide.
A second injury identified in Brown … is reputational injury. “[L]ibelous speech was long regarded as a form of personal assault … that government could vindicate … without running afoul of the Constitution.” …
Brown is a case about group defamation. The message of segregation was stigmatizing to black children. To be labeled unfit to attend school with white children injured the reputation of black children, thereby foreclosing employment opportunities and the right to be regarded as respected members of the body politic…. Brown reflects that racism is a form of subordination that achieves its purpose through group defamation.
The third injury identified in Brown is the denial of equal educational opportunity. Brown recognized that black children did not have an equal opportunity to learn and participate in the school community if they bore the additional burden of being subjected to the humiliation and psychic assault that accompanies the message of segregation. University students bear an analogous burden when they are forced to live and work in an environment where, at any moment, they may be subjected to denigrating verbal harassment and assault….
All three of these very tangible, continuing, and often irreparable forms of injury—psychic, reputational, and the denial of equal educational opportunity—must be recognized, accounted for, and balanced against the claim that a regulation aimed at the prevention of these injuries may lead to restrictions on important First Amendment liberties.
The Other Side of the Balance: Does the Suppression of Racial Epithets Weigh for or Against Speech?
In striking a balance, we also must think about what we are weighing on the side of speech. Most blacks—unlike many white civil libertarians—do not have faith in free speech as the most important vehicle for liberation. The First Amendment coexisted with slavery, and we still are not sure it will protect us to the same extent that it protects whites. It often is argued that minorities have benefited greatly from First Amendment protection and therefore should guard it jealously. We are aware that the struggle for racial equality has relied heavily on the persuasion of peaceful protest protected by the First Amendment, but experience also teaches us that our petitions often go unanswered until they disrupt business as usual and require the self-interested attention of those persons in power….
Blacks and other people of color are equally skeptical about the absolutist argument that even the most injurious speech must remain unregulated because in an unregulated marketplace of ideas the best ideas will rise to the top and gain acceptance. Our experience tells us the opposite. We have seen too many demagogues elected by appealing to America’s racism. We have seen too many good, liberal politicians shy away from the issues that might brand them as too closely allied with us. The American marketplace of ideas was founded with the idea of the racial inferiority of non-whites as one of its chief commodities, and ever since the market opened, racism has remained its most active item in trade.
But it is not just the prevalence and strength of the idea of racism that makes the unregulated marketplace of ideas an untenable paradigm for those individuals who seek full and equal person-hood for all. The real problem is that the idea of the racial inferiority of non-whites infects, skews, and disables the operation of the market (like a computer virus, sick cattle, or diseased wheat). Racism is irrational and often unconscious. Our belief in the inferiority of non-whites trumps good ideas that contend with it in the market, often without our even knowing it. In addition, racism makes the words and ideas of blacks and other despised minorities less saleable, regardless of their intrinsic value, in the marketplace of ideas. It also decreases the total amount of speech that enters the market by coercively silencing members of those groups who are its targets.
Racism is an epidemic infecting the marketplace of ideas and rendering it dysfunctional. Racism is ubiquitous. We are all racists. Racism is also irrational. Individuals do not embrace or reject racist beliefs as the result of reasoned deliberation. For the most part, we do not recognize the myriad ways in which the racism pervading our history and culture influences our beliefs. In other words, most of our racism is unconscious….
[John Stuart] Mill’s vision of truth emerging through competition in the marketplace of ideas relies on the ability of members of the body politic to recognize “truth” as serving their interest and to act on that recognition….
Prejudice that is unconscious or unacknowledged causes even more distortions in the market. When racism operates at a conscious level, opposing ideas may prevail in open competition for the rational or moral sensibilities of the market participant. But when an individual is unaware of his prejudice, neither reason nor moral persuasion will likely succeed.
Racist speech also distorts the marketplace of ideas by muting or devaluing the speech of blacks and other non-whites. An idea that would be embraced by large numbers of individuals if it were offered by a white individual will be rejected or given less credence because its author belongs to a group demeaned and stigmatized by racist beliefs….
Finally, racist speech decreases the total amount of speech that reaches the market. I noted earlier in this Article the ways in which racist speech is inextricably linked with racist conduct. The primary purpose and effect of the speech/conduct that constitutes white supremacy is the exclusion of non-whites from full participation in the body politic. Sometimes the speech/conduct of racism is direct and obvious. When the Klan burns a cross on the lawn of a black person who joined the NAACP or exercised his right to move to a formerly all-white neighborhood, the effect of this speech does not result from the persuasive power of an idea operating freely in the market. It is a threat, a threat made in the context of a history of lynchings, beatings, and economic reprisals that made good on earlier threats, a threat that silences a potential speaker. The black student who is subjected to racial epithets is likewise threatened and silenced. Certainly she, like the victim of a cross-burning, may be uncommonly brave or foolhardy and ignore the system of violence in which this abusive speech is only a bit player. But it is more likely that we, as a community, will be denied the benefit of many of her thoughts and ideas….
“WHICH SIDE ARE (WE) ON?”
… There is much about the way many civil libertarians have participated in the debate over the regulation of racist speech that causes the victims of that speech to wonder which side they are on. Those who raise their voices in protest against public sanctions of racist speech have not organized private protests against the voices of racism. It has been people of color, women, and gays who have held vigils at offending fraternity houses, staged candlelight marches, counter-demonstrations and distributed flyers calling upon their classmates and colleagues to express their outrage at pervasive racism, sexism, and homophobia in their midst and show their solidarity with its victims.
Traditional civil libertarians have been conspicuous largely in their absence from these group expressions of condemnation. Their failure to participate in this marketplace response to speech with more speech is often justified, paradoxically, as concern for the principle of free speech. When racial minorities or other victims of hate speech hold counter-demonstrations or engage in picketing, leafleting, heckling, or booing of racist speakers, civil libertarians often accuse them of private censorship, of seeking to silence opposing points of view. When both public and private responses to racist speech are rejected by First Amendment absolutists as contrary to the principle of free speech, it is no wonder that the victims of racism do not consider them allies….
There is also a propensity among some civil libertarians to minimalize the injury to the victims of racist speech and distance themselves from it by characterizing individual acts of racial harassment as aberrations, as isolated incidents in a community that is otherwise free of racism. When those persons who argue against the regulation of racist speech speak of “silencing a few creeps” or argue that “the harm that censors allege will result unless speech is forbidden rarely occurs,” they demonstrate an unwillingness even to acknowledge the injury. Moreover, they disclaim any responsibility for its occurrence.
The recent outbreak of racism on our campuses in its most obvious manifestations provides an opportunity to examine the presence of less overt forms of racism within our educational institutions. But the debate that has followed these incidents has focused on the First Amendment freedoms of the perpetrator rather than the university community’s responsibility for creating an environment where such acts occur. The resurgence of flagrant racist acts has not occurred in a vacuum. It is evidence of more widespread resistance to change by those holding positions of dominance and privilege in institutions, which until recently were exclusively white. Those who continue to be marginalized in these institutions—by their token inclusion on faculties and administrations, by the exclusion of their cultures from core curricula, and by commitment to diversity and multi-culturalism that seems to require assimilation more than any real change in the university—cannot help but see their colleagues’ attention to free speech as an avoidance of these larger issues of equality.
When the ACLU enters the debate by challenging the University of Michigan’s efforts to provide a safe harbor for its black, Hispanic, and Asian students (a climate that a colleague of mine compared unfavorably with Mississippi in the 1960s), we should not be surprised that non-white students feel abandoned. When we respond to Stanford students’ pleas for protection by accusing them of seeking to silence all who disagree with them, we paint the harassing bigot as a martyred defender of democracy. When we valorize bigotry we must assume some responsibility for the fact that bigots are encouraged by their newfound status as “defenders of the faith.” We must find ways to engage actively in speech and action that resists and counters the racist ideas the First Amendment protects. If we fail in this duty, the victims of hate speech rightly assume we are aligned with their oppressors.
STANLEY FISH
There’s No Such Thing as Free Speech, and It’s a Good Thing, Too
Stanley Fish is dean emeritus at the University of Illinois at Chicago. His article was written as a challenge to libertarians. Fish argues that freedom of speech is not a neutral or absolute principle but is inevitably invoked for political reasons. The value of speech in a particular situation needs to be weighed against other values.
Stanley Fish, “There’s No Such Thing as Free Speech, and It’s a Good Thing, Too,” Boston Review 17, no. 1 (February 1992). Used with permission of the author.
Nowadays the First Amendment is the First Refuge of Scoundrels.
—S. Johnson and S. Fish
Lately, many on the liberal and progressive left have been disconcerted to find that words, phrases, and concepts thought to be their property and generative of their politics have been appropriated by the forces of neoconservatism. This is particularly true of the concept of free speech, for in recent years First Amendment rhetoric has been used to justify policies and actions the left finds problematical if not abhorrent: pornography, sexist language, campus hate speech. How has this happened? The answer I shall give in this essay is that abstract concepts like free speech do not have any “natural” content but are filled with whatever content and direction one can manage to put into them. “Free speech” is just the name we give to verbal behavior that serves the substantive agendas we wish to advance; and we give our preferred verbal behaviors that name when we can, when we have the power to do so, because in the rhetoric of American life, the label “free speech” is the one you want your favorites to wear. Free speech, in short, is not an independent value but a political prize, and if that prize has been captured by a politics opposed to yours, it can no longer be invoked in ways that further your purposes, for it is now an obstacle to those purposes. This is something that the liberal left has yet to understand, and what follows is an attempt to pry its members loose from a vocabulary that may now be a disservice to them.
Not far from the end of his Areopagitica, and after having celebrated the virtues of toleration and unregulated publication in passages that find their way into every discussion of free speech and the First Amendment, John Milton catches himself up short and says, of course I didn’t mean Catholics, them we exterminate:
I mean not tolerated popery, and open superstition, which as it extirpates all religious and civil supremacies, so itself should be extirpated … that also which is impious or evil absolutely against faith or manners no law can possibly permit that intends not to unlaw itself.
Notice that Milton is not simply stipulating a single exception to a rule generally in place; the kinds of utterance that might be regulated and even prohibited on pain of trial and punishment constitute an open set; popery is named only as a particularly perspicuous instance of the advocacy that cannot be tolerated. No doubt there are other forms of speech and action that might be categorized as “open superstitions” or as 300subversive of piety, faith, and manners, and presumably these too would be candidates for “extirpation.” …
The list will fill itself out as utterances are put to the test implied by his formulation: Would this form of speech or advocacy, if permitted to flourish, tend to undermine the very purposes for which our society is constituted? It might appear that the result would be ad hoc and unprincipled, but for Milton the principle inheres in the core values in whose name individuals of like mind came together in the first place. Those values, which include the search for truth and the promotion of virtue, are capacious enough to accommodate a diversity of views. But at some point—again impossible of advance specification—capaciousness will threaten to become shapelessness, and at that point fidelity to the original values will demand acts of extirpation.
I want to say that all affirmations of freedom of expression are like Milton’s, dependent for their force on an exception that literally carves out the space in which expression can then emerge. I do not mean that expression (saying something) is a realm whose integrity is sometimes compromised by certain restrictions but that restriction, in the form of an underlying articulation of the world that necessarily (if silently) negates alternatively possible articulations, is constitutive of expression…. The exception to unregulated expression is not a negative restriction but a positive hollowing out of value—we are for this, which means we are against that—in relation to which meaningful assertion can then occur. It is in reference to that value—constituted as all values are by an act of exclusion—that some forms of speech will be heard as (quite literally) intolerable. Speech, in short, is never a value in and of itself but is always produced within the precincts of some assumed conception of the good to which it must yield in the event of conflict….
Despite the apparent absoluteness of the First Amendment, there are any number of ways of getting around it, ways that are known to every student of the law. In general, the preferred strategy is to manipulate the distinction, essential to First Amendment jurisprudence, between speech and action. The distinction is essential because no one would think to frame a First Amendment that began “Congress shall make no law abridging freedom of action,” for that would amount to saying “Congress shall make no law,” which would amount to saying “There shall be no law,” only actions uninhibited and unregulated. If the First Amendment is to make any sense, have any bite, speech must be declared not to be a species of action, or to be a special form of action lacking the aspects of action that cause it to be the object of regulation. The latter strategy is the favored one and usually involves the separation of speech from consequences…. The difficulty of managing this segregation is well known; speech always seems to be crossing the line into action, where it becomes, at least potentially, consequential. In the face of this categorical instability, First Amendment theorists and jurists fashion a distinction within the speech/action distinction: some forms of speech are not really speech because their purpose is to incite violence or because they are, as the court declares in Chaplinsky v. New Hampshire (1942), “fighting words,” words “likely to provoke the average person to retaliation, and thereby cause a breach of the peace.”
The trouble with this definition is that it distinguishes not between fighting words and words that remain safely and merely expressive but between words that are provocative to one group (the group that falls under the rubric “average person”) and words that might be provocative to other groups, groups of persons not now considered average. And if you ask what words are likely to be provocative to those nonaverage groups, what are likely to be their fighting words, the answer is anything and everything, for as Justice Holmes said long ago (in Gitlow v. New York), every idea is an incitement to somebody and since ideas come packaged in sentences, in words, every sentence is potentially, in some situation that might occur tomorrow, a fighting word and therefore a candidate for regulation.
This insight cuts two ways. One could conclude from it that the fighting words exception is a bad idea because there is no way to prevent clever and unscrupulous advocates from shoveling so many forms of speech into the excepted category that the zone of constitutionally protected speech shrinks to nothing and is finally without inhabitants. Or, alternatively, one could conclude that there was never anything in the zone in the first place and that the difficulty of limiting the fighting words exception is merely a particular instance of the general difficulty of separating speech from action. And if one opts for this second conclusion, as I do, then a further conclusion, is inescapable insofar as the point of the First Amendment is to identify speech separable from conduct and from the 301consequences that come in conduct’s wake, there is no such speech and therefore nothing for the First Amendment to protect…. Despite what they say, courts are never in the business of protecting speech per se, “mere” speech (a nonexistent animal); rather, they are in the business of classifying speech (as protected or regulatable) in relation to a value—the health of the republic, the vigor of the economy, the maintenance of the status quo, the undoing of the status quo—that is the true, if unacknowledged, object of their protection.
But if this is the case, a First Amendment purist might reply, why not drop the charade along with the malleable distinctions that make it possible and declare up front that total freedom of speech is our primary value and trumps anything else, no matter what? The answer is that freedom of expression would only be a primary value if it didn’t matter what was said, didn’t matter in the sense that no one gave a damn but just liked to hear talk. There are contexts like that, a Hyde Park corner or a call-in talk show where people get to sound off for the sheer fun of it. These, however, are special contexts, artificially bounded spaces designed to assure that talking is not taken seriously. In ordinary contexts, talk is produced with the goal of trying to move the world in one direction rather than another….
Take the case of universities and colleges. Could it be the purpose of such places to encourage free expression? If the answer were “yes,” it would be hard to say why there would be any need for classes or examinations, or departments, or disciplines, or libraries, since freedom of expression requires nothing but a soapbox or an open telephone line. The very fact of the university’s machinery—of the events, rituals, and procedures that fill its calender—argues for some other, more substantive purpose. In relation to that purpose (which will be realized differently in different kinds of institutions), the flourishing of free expression will in almost all circumstances be an obvious good; but in some circumstances, freedom of expression may pose a threat to that purpose, and at that point it may be necessary to discipline or regulate speech, lest, to paraphrase Milton, the institution sacrifice itself to one of its accidental features.
Interestingly enough, the same conclusion is reached (inadvertently) by Congressman Henry Hyde, who is addressing these very issues in a recently offered amendment to Title VI of the Civil Rights Act. The first section of the amendment states its purpose, to protect “the free speech rights of college students” by prohibiting private as well as public educational institutions from “subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech.” The second section enumerates the remedies available to students whose speech rights may have been abridged; and the third, which is to my mind the nub of the matter, declares as an exception to the amendment’s jurisdiction any “educational institution that is controlled by a religious organization,” on the reasoning that the application of the amendment to such institutions “would not be consistent with the religious tenets of such organizations.” In effect, what Congressman Hyde is saying is that at the heart of these colleges and universities is a set of beliefs, and it would be wrong to require them to tolerate behavior, including speech behavior, inimical to those beliefs. But insofar as this logic is persuasive, it applies across the board, for all educational institutions rest on some set of beliefs—no institution is “just there” independent of any purpose—and it is hard to see why the rights of an institution to protect and preserve its basic “te-nets” should be restricted only to those that are religiously controlled. Read strongly, the third section of the amendment undoes sections one and two…. [A]n administrator faced with complaints about offensive speech should ask whether damage to the core would be greater if the speech were tolerated or regulated.
The objection to this line of reasoning is well known and has recently been reformulated by Benno Schmidt, former president of Yale University. According to Schmidt, speech codes on campuses constitute “well-intentioned but misguided efforts to give values of community and harmony a higher place than freedom” (Wall Street Journal, May 6, 1991). “When the goals of harmony collide with freedom of expression,” he continues, “freedom must be the paramount obligation of an academic community.” The flaw in this logic is on display in the phrase “academic community,” for the phrase recognizes what Schmidt would deny, that expression only occurs in communities—if not in an academic community, then in a shopping mall community or a dinner party community or an airplane ride community or an office community. In these communities and in any other that could be imagined (with the possible exception of a community of major league baseball fans), limitations on speech in relation to a defining and deeply assumed purpose are inseparable from community membership.
Indeed, “limitations” is the wrong word because it suggests that expression, as an activity and a value, has a pure form that is always in danger of being compromised by the urgings of special interest communities; but independently of a community context informed by interest (that is, purpose), expression would be at once inconceivable and unintelligible. Rather than being a value that is threatened by limitations and constraints, expression, in any form worth worrying about, is a product of limitations and constraints, of the already-in-place presuppositions that give assertions their very particular point. Indeed, the very act of thinking of something to say (whether or not it is subsequently regulated) is already constrained … by the background context within which the thought takes its shape….
Arguments like Schmidt’s only get their purchase by first imagining speech as occurring in no context whatsoever, and then stripping particular speech acts of the properties conferred on them by contexts. The trick is nicely illustrated when Schmidt urges protection for speech “no matter how obnoxious in content.” “Obnoxious” at once acknowledges the reality of speech-related harms and trivializes them by suggesting that they are surface injuries that any large-minded (“liberated and humane”) person should be able to bear. The possibility that speech-related injuries may be grievious and deeply wounding is carefully kept out of sight, and because it is kept out of sight, the fiction of a world of weightless verbal exchange can be maintained, at least within the confines of Schmidt’s carefully denatured discourse.
To this Schmidt would no doubt reply, as he does in his essay, that harmful speech should be answered not by regulation but by more speech; but that would make sense only if the effects of speech could be canceled out by additional speech, only if the pain and humiliation caused by racial or religious epithets could be ameliorated by saying something like “So’s your old man.” What Schmidt fails to realize at every level of his argument is that expression is more than a matter of proffering and receiving propositions, that words do work in the world of a kind that cannot be confined to a purely cognitive realm of “mere” ideas.
It could be said, however, that I myself mistake the nature of the work done by freely tolerated speech because I am too focused on short-run outcomes and fail to understand that the good effects of speech will be realized, not in the present, but in a future whose emergence regulation could only inhibit…. My mistake, one could argue, is to equate the something in whose service speech is with some locally espoused value (e.g., the end of racism, the empowerment of disadvantaged minorities), whereas in fact we should think of that something as a now-inchoate shape that will be given firm lines only by time’s pencil. That is why the shape now receives such indeterminate characterizations (e.g., true self-fulfillment, a more perfect polity, a more capable citizenry, a less partial truth); we cannot now know it, and therefore we must not prematurely fix it in ways that will bind successive generations to error.
This forward-looking view of what the First Amendment protects has a great appeal, in part because it continues in a secular form the Puritan celebration of millenarian hopes, but it imposes a requirement so severe that one would expect more justification for it than is usually provided. The requirement … that we endure whatever pain racist and hate speech inflicts for the sake of a future whose emergence we can only take on faith … raises more questions than it answers and could be seen as the second of two strategies designed to delegitimize the complaints of victimized groups. The first strategy, as I have noted, is to define speech in such a way as to render it inconsequential (on the model of “sticks and stones will break my bones, but …”); the second strategy is to acknowledge the (often grievous) consequences of speech but declare that we must suffer them in the name of something that cannot be named. The two strategies are denials from slightly different directions of the present effects of racist speech; one confines those effects to a closed and safe realm of pure mental activity; the other imagines the effects of speech spilling over into the world but only in an ever-receding future for whose sake we must forever defer taking action.
I find both strategies unpersuasive, but my own skepticism concerning them is less important than the fact that in general they seem to have worked; in the parlance of the marketplace (a parlance First Amendment commentators love), many in the society seemed to have bought them. Why? The answer, I think, is that people cling to First Amendment pieties because they do not wish to face what they correctly take to be the alternative. That alternative is politics, the realization (at which 303I have already hinted) that decisions about what is and is not protected in the realm of expression will rest not on principle or firm doctrine but on the ability of some persons to interpret—recharacterize or rewrite—principle and doctrine in ways that lead to the protection of speech they want heard and the regulation of speech they want silenced. (That is how George Bush can argue for flag-burning statutes and against campus hate-speech codes.) When the First Amendment is successfully invoked, the result is not a victory for free speech in the face of a challenge from politics but a political victory won by the party that has managed to wrap its agenda in the mantle of free speech.
It is from just such a conclusion—a conclusion that would put politics inside the First Amendment—that commentators recoil, saying things like “This could render the First Amendment a dead letter” or “This would leave us with no normative guidance in determining when and what speech to protect,” or “This effaces the distinction between speech and action,” or “This is incompatible with any viable notion of freedom of expression.” To these statements (culled more or less at random from recent law review pieces) I would reply that the First Amendment has always been a dead letter if one understood its “liveness” to depend on the identification and protection of a realm of “mere” expression distinct from the realm of regulatable conduct; the distinction between speech and action has always been effaced in principle, although in practice it can take whatever form the prevailing political conditions mandate; we have never had any normative guidance for marking off protected from unprotected speech; rather, the guidance we have has been fashioned (and refashioned) in the very political struggles over which it then (for a time) presides. In short, the name of the game has always been politics, even when (indeed, especially when) it is played by stigmatizing politics as the area to be avoided.
In saying this, I would not be heard as arguing either for or against regulation and speech codes as a matter of general principle. Instead my argument turns away from general principle to the pragmatic (anti)principle of considering each situation as it emerges. The question of whether or not to regulate will always be a local one, and we cannot rely on abstractions that are either empty of content or filled with the content of some partisan agenda to generate a “principled” answer. Instead we must consider in every case what is at stake and what are the risks and gains of alternative courses of action. In the course of this consideration many things will be of help, but among them will not be phrases like “freedom of speech” or “the right of individual expression,” because, as they are used now, these phrases tend to obscure rather than clarify our dilemmas…. And when someone warns about the slippery slope and predicts mournfully that if you restrict one form of speech, you never know what will be restricted next, one could reply, “Some form of speech is always being restricted, else there could be no meaningful assertion; we have always and already slid down the slippery slope; someone is always going to be restricted next, and it is your job to make sure that the someone is not you.” And when someone observes, as someone surely will, that antiharassment codes chill speech, one could reply that since speech only becomes intelligible against the background of what isn’t being said, the background of what has already been silenced, the only question is the political one of which speech is going to be chilled, and, all things considered, it seems a good thing to chill speech like “nigger,” “cunt,” “kike,” and “faggot.” And if someone then says, “But what happened to free-speech principles?” one could say what I have now said a dozen times, free-speech principles don’t exist except as a component in a bad argument in which such principles are invoked to mask motives that would not withstand closer scrutiny….
ALAN M. DERSHOWITZ
Political Correctness, Speech Codes, and Diversity
Alan Dershowitz is a law professor at Harvard University and one of the foremost defense lawyers and civil libertarians in the United States. In this article, Dershowitz examines the motives behind the political correctness movement. He concludes that the speech codes promoted by the political correctness movement, while claiming to promote greater diversity, in fact limit diversity of expression.
There is now a debate among the pundits over whether the “political correctness” [P.C.] movement on college and university campuses constitutes a real threat to intellectual freedom or merely provides conservatives with a highly publicized opportunity to bash the left for the kind of intolerance of which the right has often been accused.
Alan M. Dershowitz, “Political Correctness, Speech Codes, and Diversity,” Harvard Law Record, September 20, 1991. Used with permission of the author.
My own sense, as a civil libertarian whose views lean to the left, is that the “P.C.” movement is dangerous and that it is also being exploited by hypocritical right wingers.
In addition to being intellectually stifling, the P.C. movement is often internally inconsistent. Among its most basic tenets are (l) the demand for “greater diversity” among students and faculty members; and (2) the need for “speech codes,” so that racist, sexist and homophobic ideas, attitudes and language do not “offend” sensitive students.
Is it really possible that the bright and well-intentioned students (and faculty) who are pressing the “politically correct” agenda do not realize how inherently self-contradictory these two basic tenets really are? Can they be blind to the obvious reality that true diversity of viewpoints is incompatible with speech codes that limit certain diverse expressions and attitudes?
I wonder if most of those who are pressing for diversity really want it. What many on the extreme left seem to want is simply more of their own: more students and faculty who think like they do, vote like they do and speak like they do. The last thing they want is a truly diverse campus community with views that are broadly reflective of the multiplicity of attitudes in the big, bad world outside of the ivory towers.
How many politically correct students are demanding—in the name of diversity—an increase in the number of Evangelical Christians, National Rifle Association members, and Right to Life advocates? Where is the call for more anti-communist refugees from the Soviet Union, Afro-Americans who oppose race-specific quotas, and women who are antifeminist?
Let’s be honest: the demand for diversity is at least in part a cover for a political power grab by the left. Most of those who are recruited to provide politically correct diversity—Afro-Americans, women, gays—are thought to be supporters of the left. And historically, the left—like the right—has not been a bastion of diversity.
Now the left—certainly the extreme left that has been pushing hardest for political correctness—is behind the demands for speech codes. And if they were to get their way, these codes would not be limited to racist, sexist, or homophobic epithets. They would apply as well to politically incorrect ideas that are deemed offensive by those who would enforce the codes. Such ideas would include criticism of affirmative action programs, opposition to rape-shield laws, advocacy of the criminalization of homosexuality and defense of pornography.
I have heard students argue that the expression of such ideas—both in and out of class, both by students and professors—contributes to an atmosphere of bigotry, harassment and intolerance, and that it makes it difficult for them to learn.
The same students who insist that they be treated as adults when it comes to their sexuality, drinking and school work, beg to be treated like children when it comes to politics, speech and controversy. They whine to Big Father and Mother—the president or provost of the University—to “protect” them from offensive speech, instead of themselves trying to combat it in the marketplace of ideas.
Does this movement for political correctness—this intolerance of verbal and intellectual diversity—really affect college and university students today? Or is it, as some argue, merely a passing fad, exaggerated by the political right and the media?
It has certainly given the political right—not known for its great tolerance of different ideas—a heyday. Many hypocrites of the right, who would gladly impose their own speech codes if they had the power to enforce their way, are selectively wrapping themselves in the same First Amendment they willingly trash when it serves their political interest to do so.
But hypocrisy aside—since there is more than enough on both sides—the media are not exaggerating the problem of political correctness. It is a serious issue on college and university campuses. As a teacher, I can feel a palpable reluctance on the part of many students—particularly those with views in neither extreme and those who are anxious for peer acceptance—to experiment with un-orthodox ideas, to make playful comments on serious subjects, to challenge politically correct views and to disagree with minority, feminist or gay perspectives.
I feel this problem quite personally, since I happen to agree—as a matter of substance—with most “politically correct” positions. But I am appalled at the intolerance of many who share my substantive views. And I worry about the impact of politically correct intolerance on the generation of leaders we are currently educating.
JONATHAN MARKS
Embarrassing Persistence of Campus Speech
Jonathan Marks is a regular contributor to Commentary magazine. In the following article, Marks questions why speech codes still exist at some colleges, despite rulings that they are unconstitutional.
In the late 1980s, numerous colleges and universities designed and adopted speech codes to curtail racist and other discriminatory speech. You can’t say they weren’t provoked. The University of Michigan, for example, adopted its code in the wake of a number of incidents including the distribution of fliers peppered with disgusting racial slurs that declared an “open season” on blacks. But at least at public universities, which must respect the First Amendment as agents of the state, these speech codes have been constitutional losers.
Jonathan Marks, “Embarrassing Persistence of Campus Speech Codes” Reprinted from Commentary, February 20, 2018 by permission; copyright © 2018 by Commentary, Inc.
According to Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law, “every court to consider such a hate speech code declared it to 307be unconstitutional.” Such codes cannot, it seems, be drawn narrowly enough to avoid encroaching on constitutionally protected speech. The University of Michigan, for example, resolved a complaint against a student who had said of a class that “he had heard that minorities had a difficult time in the course and that he had heard that they were not treated fairly.” The professor in the class, a member of a minority group, filed the complaint on the grounds that the student’s speech might undermine her tenure case.
This example of overbreadth is not only a reason why the code was struck down in Doe v. University of Michigan (1989). It does, however, suggest that speech codes are often deployed against people who are not engaged in even mildly offensive speech, let alone harassment. That, coupled with the absence of proof that speech codes are effective at addressing the discrimination they purport to address, should have killed them long ago. Yet both public and private universities continue to maintain policies on speech that do not pass the First Amendment laugh test.
Consider Kentucky State University, whose speech code is the “Speech Code of the Month” for the Foundation of Individual Rights in Education (FIRE). Kentucky State’s Student Code of Conduct, reasonably enough, concerns itself with “offenses against persons,” including “any contact or communication that threatens, harasses, or injures a person.” But listed among the example of such offenses, along with “physical assault,” “coercion,” and “threats,” is “embarrassment.” Yes, really. As FIRE says, it appears that a student at Kentucky State University “can face disciplinary action for embarrassing another person.” That certainly would seem to “directly [affect] students’ ability to engage in unfettered, free-wheeling debate and argument on important political and social issues.” I suppose, in theory, it directly affects their ability to point out the schmutz on a classmate’s shirt.
It is hard to imagine that this code is enforced, so we need not tremble for the right of students to poke fun at each other at KSU. But the persistence of codes like KSU’s in the face of clear guidance from courts regarding their unconstitutionality, and in the absence of evidence that they do more good than harm, is a mystery. Are those who devise such codes ignorant of the law and of their record? Or do they stick with them because they are willing to risk legal challenge and their reputations only to appear to be on the right side of history concerning prejudice?
Either way—and I can say this because I am not subject to KSU’s student code of conduct—KSU’s leaders deserve to be embarrassed.
TRACI YODER
Free Speech on Campus: A Critical Analysis
Traci Yoder is Director of Research and Education with the National Lawyers Guild. She holds advanced degrees in anthropology and library science. Her profession interests include, in addition to free speech on campuses, mass surveillance, drug policy, and policing protests. In the following reading, Yoder questions whether unrestricted freedom of speech is the best way to ensure that all views get heard on college campuses.
Last weekend, while Vice-President and former Indiana governor Mike Pence was giving the commencement address at Notre Dame University, over 100 students walked out in protest over his anti-LGBTQ and anti-refugee policy positions. Pence used this opportunity to give a 15-minute lecture about free speech on campuses, condemning what he calls “speech codes, safe spaces, tone policing, administration-sanctioned political correctness—all of which amounts to nothing less than suppression of the freedom of speech.” In contrast, he extolled the virtues of civility, open debate, the pursuit of knowledge, and the free exchange of ideas. Pence’s arguments, which sound lofty and noble, conceal as much as they reveal about the role of free speech in educational contexts today.
Much has been written in the past several months about dramatic conflicts at universities, especially those between protesters and high-profile far right figures… bringing the issue of student activism and free speech to the forefront. While the recent focus has been on these so-called “alt right” celebrities and the growing role of groups like the Young America’s Foundation (YAF), there is a much longer history of conservative speakers being invited to campuses under the banner of free speech. Here I examine the groundwork laid by the Federalist Society, a long-standing legal organization which has been sending reactionary speakers to universities for nearly 40 years. Drawing connections between arguments used by liberal proponents of free speech and the rhetoric of the alt right, I examine how the free speech and open debate arguments being used today to defend the hateful messages of far right speakers have been established over a long period and need to be explored in the context of rising fascism, white supremacy, and extreme social inequality. From this perspective, the comments of Pence (himself an affiliate of the Federalists) take on a deeper and more ominous meaning.
Traci Yoder, “Free Speech on Campus: A Critical Analysis” National Lawyers Guild, May 25, 2017. Used with permission..
The Federalist Society
Outside the legal profession, most people know very little about the Federalist Society, a group that has been called “quite simply the best-organized, best-funded, and most effective legal network operating in the country.”[1] As the political right gains traction under the Trump administration, it is worth exploring the mission and history of this group, which has played a critical role in the conservative shift of law and politics over the past 35 years. One of the ways the Society has spread its ideas and found new members is through its long-standing debate program, in which far right attorneys are sent to speak at law schools…
The Federalist Society was founded in 1980 by law students and faculty who felt alienated by the allegedly liberal atmosphere of law schools. Since then, the organization has been enormously successful in translating its ideas into law and policy, and has done so while remaining mostly outside the attention of media and the general public. In their recent book, The Federalist Society: How Conservatives Took the Law Back From Liberals, Michael Avery and Danielle McLaughlin show how unrestricted funding provided by billionaires like the Koch brothers and John Olin has allowed the Federalists to promote extremely conservative legal positions which privilege private property rights, criticize government interventions in social and economic problems, and target the rights of women, immigrants, people of color, and gay and trans individuals and communities…
The Federalist Society has been extremely successful in getting its members into powerful positions while keeping its influence out of public view. Those unfamiliar with the Society may be surprised to learn that its members are represented at every level of government and the judiciary, including four current Supreme Court justices (Clarence Thomas, John Roberts, Samuel Alito, and most recently, Neil Gorsuch). Every Federal Judge appointed by Presidents Bush (Jr. and Sr.) was a member of the Society or an approved affiliate of the organization, and every Republican administration since Reagan has included prominent Society members.[4] This trend continues and has become even more pronounced with the Trump administration….
Federalist Society members argue that they do not have a specific “agenda” and that there is nothing clandestine or nefarious about their organization. Indeed, the Society is very public about its mission, its focus on ideas, and its commitment to speaking openly about conservative legal perspectives. Furthermore, given its alliance of libertarians, economic conservatives, social conservatives, and Christians, it is true that the Federalists cannot be said to be an ideological monolith. In fact, the organization itself does not lobby or take public policy positions, but rather relies on its individual members and allied organizations to pursue goals such as rolling back affirmative action and identity-based discrimination laws, contesting government regulation of the economy and environment, removing access to legal remedies for workers and consumers, expanding state support for religious institutions, opposing abortion, protecting private property, challenging protections for immigrants, and limiting the size of the federal government. The overall impact of these various (sometimes disparate) positions is to provide advantages to the already wealthy, while leaving the rest of society poorer and increasingly disenfranchised. Although the Society presents itself as simply an intellectual forum, in reality it holds an immense amount of power and influence.
Free Speech and Its Discontents
For decades, the Federalist Society has sponsored debates at law school campuses in which their members argue the various positions described above. Organizing debates is a key strategy of the Society, which allows it to present itself as offering a dialogue of perspectives in order to provide a platform for what is often dehumanizing and far right rhetoric….
During this time of controversy on campuses over the place of free speech within current political struggles, the role of the Federalist Society provides an example of how the conservative movement successfully legitimizes itself and spreads its message. Despite the conservative atmosphere of almost all law schools, and the current far-right influence in politics more generally, law student members of the Federalist Society still claim to feel silenced within the “liberal” context of their schools. Student groups and administrators invite far-right speakers under the banner of free speech, viewpoint diversity, and healthy debate, and portray challenges to or dissent against these speakers as attacks on the First Amendment (rather than seeing the protests themselves as protected forms of speech). While the 310Federalist Society does at least offer other perspectives by framing their events as debates, events sponsored by groups like YAF and College Republicans have increasingly been inviting provocative far right speakers the New York Times has described as “edgier, more in-your-face and sometimes even mean-spirited.”
Competing perspectives on free speech across the spectrum of the left are worth examining at this fraught political moment. One popular approach, exemplified by our allies at the ACLU, argues that even hateful speech is constitutionally protected. From this perspective, speech that attacks individuals and groups based on race, gender, ethnicity, religion, or sexual orientation is both legal and defendable. The ACLU and many liberal-minded people assume that allowing all speech under any circumstances will ensure that the best ideas win out and that it is ideal to have even potentially dangerous ideas out in the open where they can be challenged. They question attempts by universities to adopt codes and policies prohibiting hate speech, arguing that this well-intentioned response is incorrect and akin to censorship. Rather than restrict the right to use racist, sexist, transphobic, ableist, or other such speech on campuses, the ACLU recommends an educational approach that offers less intolerant viewpoints from which individuals can choose. A final important argument from this perspective points out that the limiting of speech on one end of the political spectrum can produce limitations on any speech found to be controversial, and will inevitably lead to greater restrictions on the other end.
This approach may seem logical and commonsense to many, and this line has certainly been taken up by the far right, who complain that the failure to include conservative views alongside liberal perspectives is a violation of free speech. On university campuses, reactionary student groups and their supporters draw on First Amendment arguments to promote agendas that are openly racist, sexist, homophobic, transphobic, xenophobic, and ableist. They claim that any resistance from the administration or the student body to these hateful ideologies is in violation of legally protected speech, and even ostensibly progressive universities have given in to this pressure by monitoring and censoring opposition. Extreme right fascist and white nationalist groups outside of universities also rely on the discourse of free speech to claim their views are valid and protected. While complaining about the “politically correct snowflakes” on the left, these far right speakers and their supporters actively cultivate their status as victims by attacking the vulnerable through their hateful speech and then claiming persecution when challenged.
From the commonsense liberal approach described above, the best way to address these kinds of speakers would be to let them express their views so others can decide if they agree or not. If all sides are debated openly, advocates of this perspective contend, the best one will obviously succeed. However, far right conservative and fascist ideology is not simply based on logical and reasonable arguments; rather, these movements depend on the irrational mobilization of hate, fear, and anger against some of the most marginalized and vulnerable populations. Offering them an open forum and vigorously defending their right to promote harmful speech confers legitimacy on their positions as being equally as acceptable as any other.
Another problem with the liberal free speech model is that is does not take into account the asymmetry of different positions and the reality of unequal power relations. Arguments about free speech rarely address the significant imbalances in power that exist between, for example, a wealthy white speaker with the backing of a multi-million dollar organization and members of the populations affected by their words (i.e. immigrants, people of color, queer and trans people, low-wage workers, etc.). What are lost in the abstract notion of free speech are the rights of those who do not have the connections or wealth to equally participate in public discourse. The “marketplace of ideas” is like any other marketplace; those with the most resources dominate.
Finally, the trend of students and local community members protesting reactionary speakers at universities has led to outcry about the “intolerant left” violating the free speech of the far right. But those who are so determined to protect the free speech of fascists, white supremacists, and other hate groups should be equally as concerned with protecting the right of dissidents to protest these viewpoints. While giving a speech attacking individuals and groups based on their race, sexuality, or immigration status is considered legal and acceptable by universities, the protests of those who find these viewpoints reprehensible are often censured or punished by the same institutions. It should give us pause that recent model legislation to protect “free speech” on campuses and to discipline those who protest controversial 311speakers comes from conservative think tanks The Heritage Foundation, The Goldwater Institute, and The Ethics and Public Policy Center.
Strategic Interventions
Since the 1980s, when the Federalist Society began sending extremely conservative speakers to law schools, concerned law students and faculty have responded in various ways….
Federalist Society speakers have often been met with protests from law student groups … Challenges to reactionary speakers have included putting up flyers with information about the speakers and their background, circulating petitions to have the event cancelled, organizing counter-events and speakers, writing op-ed pieces for campus and local publications, sending students to the event with a list of critical questions, and protesting outside or within the event by walking out or holding signs. University administration responses to these kinds of interventions have often been to stifle the protest, although these activities also fall under the banner of protected speech. Law students report having their fliers removed from the campus, being threatened with disciplinary sanctions, or even being told that protesting will lead to negative evaluations on the Character and Fitness Exam required for the bar. While the rights of dissenting students are suppressed, the ability of far right speakers to disseminate hateful rhetoric is protected through claims of the right to free speech.
These are only some strategies for confronting harmful speech in educational settings. While liberal advocates are quick to invoke First Amendment arguments to allow all speech, there are other considerations to take into account as well, such as: Who is able and allowed to speak, under what conditions and with what consequences? What voices are silenced and what forms of dissent are possible (or not)? Universities can use free speech principles to justify invitations to xenophobic and hate-mongering speakers, but not inviting or funding these people is not necessarily a violation of their free speech, especially when they have many other platforms for getting their message out. Private schools, for example, are not bound by the First Amendment in the same ways as public schools, and can therefore make policies about hate speech that limit invitations and/or funding to reactionary speakers and groups. When the views of speakers are actually dangerous to other people, universities should consider the implications and balance the need for a diversity of viewpoints with the consequences of invalidating the humanity or rights of entire groups of already disadvantaged people.
[1] Jerry M. Landay, “The Conservative Cabal That’s Transforming American Law,” Washington Monthly, March 2000.
CASE STUDIES
1. HUSTLER PUBLISHER LARRY FLYNT: “FREE-SPEECH HERO”
The hard-core porn magazine Hustler, is a popular source of sex education and socialization among teenage boys. One Hustler journalist instructs readers that men are “basically rapists, because we’re created that way. We’re irrational, sexually completely crazy. Our sexuality is more promiscuous, more immediate, and more fleeting, possibly less deep. We’re like stud bulls that want to mount everything in sight.”26 Hustler also helps readers select vulnerable targets. For example, one issue had an article titled “Good Sex with Retarded Girls.” Hustler also used to run a regular kiddie corner called “Chester the Molester.”
The U.S. Supreme Court in 1988 ruled that Hustler magazine publisher Larry Flynt does have a right to publish and sell pornography. In the 1996 film The People vs. Larry Flynt, producer Oliver Stone portrays Flynt as a free-speech hero. The controversial film is about Flynt’s legal battles against those—especially the “religious right”—who want pornography to be censored. Libertarians have declared him a free-speech hero and defender of civil liberties. Although circulation is down from its peak of 3 million, Hustler magazine continues to be popular among hard-core pornography enthusiasts.
2. BROWN STUDENTS DESTROY OFFENDING NEWSPAPERS
When the Brown Daily Herald at Brown University decided to run an ad from David Horowitz entitled “Ten Reasons Why Reparations for Slavery Is a Bad Idea—and Racist Too,” a coalition of student groups stole nearly 4,000 copies of the newspaper from campus distribution points. Defendants of the action stated that Horowitz’s ad was
an attempt to inject blatantly revisionist and, yes, racist arguments into a legitimate debate about black reparations…. [In] denying the central role of blacks in demanding their own freedom, Horowitz does more than lie. He reveals his true conception of whites as the bestowers of 313humanity and his contempt for blacks who ask for too much humanity…. Outrage is perhaps the only appropriate response [to Horowitz].28
They also argued that because Horowitz had the $750 to pay for the full-page ad, the issue was not about freedom of speech but about who can afford to print their views.
The Herald released a statement condemning the action of the students who stole the newspapers, stating “We cannot condone the actions our critics have taken against us. The recent theft of thousands of copies of the Herald from Brown’s campus was an unacceptable attempt to silence our voice.” The University administration released a statement supporting the Herald.
3. SHOUTING DOWN A SPEAKER
Charles Murray is a scholar at the American Enterprise Institute for Public Policy Research—a conservative think tank based in Washington, DC. Many of his writings are controversial, including The Bell Curve, a book that links intelligence and race. The book has been widely condemned by many social scientists although it has been supported by others.
When Murray was invited to speak at Middlebury College, students stood and turned their backs to him, chanting: “Racist, sexist, anti-gay, Charles Murray, go away,” and “Your message is hatred. We cannot tolerate it.” The chanting was so loud that Murray could not be heard. He was later taken to a private location, where a discussion with a professor was livestreamed. After the livestreaming event some students attacked the car carrying Murray and the professor.
Laurie Patton, president of Middlebury, attended the attempted lecture. President Patton said she attended because students had invited her, and she tries to attend events when invited—regardless of her views of a speaker. She disapproved of the students’ action in silencing the speaker. “The very premise of free speech on this campus,” she said, “is that a speaker has a right to be heard.”
None of the students, including those who attacked Murray’s car, received any reprimand for their actions.
4. MANDATORY PATRIOTISM
Should people be required by law to stand for the national anthem or to say the pledge of allegiance to the American flag? On January 9, 1942, the West Virginia Board of Education adopted a resolution ordering public schools to make the salute to the flag “a regular part of the program of activities in the public schools,” and that all teachers and pupils “shall be required to participate in the salute honoring the Nation represented by the Flag.” Refusal to salute the Flag would be regarded as an Act of insubordination, and would be dealt with by expulsion. Readmission was denied until the child agreed to comply. Meanwhile the expelled child was considered “unlawfully absent” and a delinquent and the child’s parents or guardians were liable to prosecution.
In response a lawsuit was brought against the Board of Education objecting that making the salute mandatory was a violation of the students First Amendment right to freedom of speech. The case went all the way to the United States Supreme Court which ruled in West Virginia State Board of Education v. Barnette (1943) that “there is no doubt that, in connection with the pledges, the flag salute is a form of utterance” and, as such, mandating students to say the pledge is a violation of their freedom of speech.
More recently, in 2018, players in the National Football League refused to stand for the national anthem as a protest against inequality and racism in the United States. The National Football League responded by requiring all players to either stand for the anthem or wait in their dressing rooms. This has raised an outcry from some that doing so is a violation of their civil rights and freedom of speech.
5. THE “MEAN WORLD SYNDROME” AND VIOLENCE IN THE MEDIA
Oscar Wilde once said that life imitates art. Perhaps he was right. Epidemiologist Brandon Centerwall of the University of Washington suggests that violence in the media has made us mean people—a situation he labels the “Mean World Syndrome.”
In 1995 fourteen-year-old Sandy Charles of Saskatchewan, watched the movie Warlock at least ten times in the days leading up to the kidnapping and murder of seven-year-old Jonathan Thimpsen. The 1991 film depicted a satanic murder in which the victim’s skull was crushed with a rock and then strips of flesh were peeled off the victim and boiled in liquid fat—the same method used in the murder of Thimpsen. In 1995, three days after the opening of the movie Money Train, in which a New York subway token clerk was doused with a flammable liquid and set on fire, two men who had seen the movie carried out a copycat crime, leaving token booth clerk Harry Kaufman in critical condition with burns over 75 percent of his body. In the next few days, two more token booth clerks were attacked or threatened in a similar manner. Copycat crimes have also been carried out based on Oliver Stone’s blood-and-guts movie Natural Born Killers. A suit against his movie was dismissed by the courts.
Murders have also been inspired by printed matter. In 1993 James Perry murdered Mildred Horn, her eight-year-old son, and the son’s nurse. When they went through Perry’s belongings, police found a book entitled Hitman: How to Make a Disposable Silencer about the techniques of professional murder. There were twenty-two instances in which the book’s “recommendations” matched actual details in the Perry murders.
The families of the murder victims brought a wrongful-death suit against the publisher, Paul Lind, who responded that the information his company publishes is protected under freedom of speech and the company is not responsible for how people use that information.29 His insurance carrier decided to settle the lawsuit rather than go to trial, so the question was never resolved.
6. INTERNET PLAGIARISM AMONG COLLEGE STUDENTS
Internet plagiarism among college students has increased dramatically in the last ten years. In a recent study, 44 percent of college students admitted to cut-and-paste Internet plagiarism, up from 10 percent in 1999. Of the 50,000 students surveyed, 77 percent said they did not regard this sort of plagiarism as a serious offense.32
Mona, a senior honor student who has just been accepted into Harvard Medical School, just realized that she has a three-page paper due the next day for a literature class. She also has an important project due for her microbiology class. Since she doesn’t have time to do both, she goes to the Internet, finds an obscure website, and cuts and pastes parts of it into a paper. She e-mails it to her professor, as instructed in the syllabus.
In response to the increase in Internet plagiarism, some colleges have started using antiplagiarism software, such as TurnItIn.com, a website that serves thousands of educational institutions worldwide and receives about 100,000 student papers a day. TurnItIn.com uploads the papers into its database and then searches its database and billions of other pages on the Web for matches. Mona’s literature teacher sends Mona’s paper to TurnItIn.com and finds out that sections of the paper were plagiarized. She calls Mona into her office, confronts her, and tells Mona that she is failing her for the course and reporting her to the Dean. If Mona fails the course, she will not be able to graduate and go to medical school.
7. TERRORISM AND FREEDOM OF SPEECH ON THE INTERNET
An avid Internet blogger and a graduate of the Massachusetts College or Pharmacy and Health Science, 29-year-old American-born Tarek Mehanna of Boston hardly seems the typical terrorist. Upset by the U.S. invasion of Iraq and responding to Osama bin Laden’s call to take up arms against U.S. soldiers, Mehanna traveled to Yemen in 2004 hoping to train in a terrorist camp. Unable to find one, he returned to the United States where he took up promoting the jihadist cause by translating and distributing material, including “39 Ways to Serve and Participate in Jihad or Holy War,” on the Internet.
In 2009, Mehanna was arrested on charges of conspiring to help al-Qaida. During his trial, prosecuting attorneys described Mehanna as a longtime terrorist wannabe arguing that he was promoting violent jihad and putting American lives in danger. Mehanna’s lawyers, in turn, argued that he was simply expressing his anger over U.S. involvement in Iraq and was exercising his First Amendment right to freedom of speech in promoting jihad by translating and distributing materials on the Internet. His lawyer argued in his defense that: “As Americans we have that freedom [to promote our views on the Internet]. We can hold onto these beliefs and we can speak them, even if it upsets the federal government.”
In December 2011, Mehanna was found guilty of conspiring to provide support to a terrorist organization, conspiring to kill Americans in a foreign country, and lying to federal officials. He could receive up to life in prison. Nancy Murray of the Massachusetts branch of the ACLU responded to the verdict saying: “This case is being used by the government to really narrow First Amendment activity in dangerous new ways. It might be speech that horrifies people, but it’s the nature of the First Amendment to protect speech, unless it’s leading to imminent lawless action.”34
NOTES
1. Larry Alexander, “Banning Hate Speech and the Sticks and Stones Defense,” Constitutional Commentary 13, no. 1 (1996): 71.
2. William F. Buckley Jr., and L. Brent Bozell, McCarthy and His Enemies (Chicago: Henry Regnery, 1954).
3. “Internet Growth Statistics,” December 2017, http://
4. John H. Pryor, Sylvia Hurtado, Jessica Sharkness, and William S. Korn, The American Freshman National Norms for Fall 2007 (Higher Education Research Institute, University of California, Los Angeles, December 2007), p. 8.
5. Reid Goldsborough, “Free Speech in Cyberspace—Both a Privilege and a Burden,” Community College Week 12, no. 1 (August 23, 1999): 27.
6. Kevin Platt, “With a Click, Chinese Vault Cultural Walls,” Christian Science Monitor 92, no. 133 (June 1, 2000): 1.
7. “Internet Pornography Statistics,” www.toptenreviews.com/
8. See Gloria Steinem, “Erotica and Pornography: A Clear and Present Difference,” Ms. magazine, November 1978, for a more in-depth discussion of the difference between erotica and pornography.
9. House of Commons, Standing Committee on Justice and Legal Affairs, Report on Pornography 22, no. 18 (March 1978): 4. See also “The Evolution of Pornography Law in Canada,” www.parl.gc.ca/
10. Stephanie Pappas, “Is Pornography Bad for You?” March 23, 2012, https://
11. Paul J. Wright, Robert S. Tokunaga, and Ashley Kraus, “A Meta-Analysis or Pornography Consumption and Actual Acts of Sexual Aggression in General Population Studies,” Journal of Communication (December 29, 2015), https://
12. For more on the topic of pornography and feminism, see Catherine MacKinnon, “Pornography, Civil Rights and Speech,” in Feminism Unmodified: Discourses on Life and Law (Cambridge, ass.: Harvard University Press, 1988); and Nancy Strossen, “Hate Speech and Pornography: Do We Have to Choose Between Freedom of Speech and Equality?” Case Western Law Review 46, no. 2 (Winter 1996).
13. John Leo, “Watch What You Say,” U.S. News & World Report 128, no. 11 (March 20, 2000): 18.
14. Doe v. University of Michigan, 721 F. Supp. 852 (E.D.Mich. 1989).
15. Foundation for Individual Rights in Education (FIRE), “Spotlight on Speech Codes 2017,” https://
16. Martin Bentham, “College Guide Bans ‘Lady’ and ‘History’ as Offensive Words,” Sunday Telegraph (London), June 11, 2000, p. 3.
17. Marla Fisher, “Free Speech v. Censorship,” Community College Week, May 19, 2008, p. 7.
18. Christian Mignot, “Lawsuits, Debate Intensify over University ‘Free Speech Zones,’” Daily Bruin (UCLA), October 1, 2002.
19. John Locke, The Second Treatise of Government (New York: Cambridge University Press, 1960), 457.
20. Ayn Rand, “Man’s Rights,” in The Virtue of Selfishness (New York: Penguin, 1964), 114.
21. John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971).
22. John Stuart Mill, “On Liberty,” in Collected Works of John Stuart Mill (Toronto: University of Toronto Press, 1977), 220.
23. For more on this interpretation of Mill’s theory of free speech, see Jill Gordon, “John Stuart Mill and the ‘Marketplace of Ideas,’” Social Theory and Practice 23, no. 2 (1997).
24. “Forbidden Thoughts: A Roundtable on Taboo Research,” The American Enterprise, January/February 1995, p. 69.
25. D. F. B. Tucker, Law, Liberalism and Free Speech (Totowa, N.J.: Rowman & Allanheld, 1985), 141.
26. Quoted by Sarah J. McCarthy, “Pornography, Rape, and the Cult of Macho,” Humanist, September/October 1980, p. 15.
27. This is a paraphrase of Samuel Johnson’s famous statement, “Patriotism is the first refuge of scoundrels.”
28. “The Real Meaning Behind Horowitz Advertisement,” Op-Ed, Brown Daily Herald 139, no. 93, 2001, www.browndailyherald.com/
29. See Calvin Reid, “Appeals Court Reviewing ‘Hitman’ Ruling,” Publishers Weekly, May 19, 1997, p. 14.
30. Brandon S. Centerwall, “Exposure to Television as a Cause of Violence,” in Public Communication and Behavior, vol. 2, ed. G. Comstock (Orlando: Academic Press, 1989), 1–58.
31. Richard B. Felson, “Mass Media Effects on Violent Behavior,” Annual Review of Sociology 22 (1996): 103–128.
32. http://
33. See Sharon Machlis, “University Sues Over Internet Term-Paper Site,” Computerworld, October 1997, p. 3; and Julianne Basinger and Kelly McCollum, “Boston U. Sues Companies for Selling Term Papers Over the Internet,” Chronicle of Higher Education, October 31, 1997, pp. A34–A35.
34. Adam Serwer, “Does Posting Jihadist Material Make Tarek Mehanna a Terrorist?” December 11, 2011. http://